![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
Entry tags:
Recent SCOTUS cases
On student loan forgiveness: the Department of Education has always had the power to forgive certain student loans, so the Court is on thin ice when it says forgiving this many loans is OK, but forgiving that larger number of loans needs to be authorized by Congress. But never mind: the State of Missouri had no standing to sue, so this should never have reached the court at all. Next!
The other two are more problematic.
On a private business owner refusing to build a Web site about a same-sex wedding: there really is a legitimate argument that people can choose what jobs to take, what business contracts to enter into. Particularly in a case like this in which the contract in question requires the business owner to do significant creative expression, aka "speech", in support of what the customer wants. If you run a private advertising company and are approached by the Baby-Seal-Clubbing Cooperative of Newfoundland for a campaign to improve their image and persuade the public that clubbing baby seals is good and laudable, don't you have the right to refuse that job because it violates your personal morals as an advertiser?
On the other hand, that's pretty much the argument somebody might have used a hundred years ago to defend excluding blacks, or Jews, or Irish, as customers from a particular business. If the Supreme Court says the right of a business to pick and choose its customers outweighs the right of a customer to patronize a business that's "open to the public", are racial exclusions next on the chopping block? Can a business refuse a mixed-race customer on the basis of the moral/religious belief that miscegenation is wrong? And if a business can exclude customers on moral grounds, it can presumably also exclude employees on moral grounds (since that's a much closer business arrangement); does that mean a lot of employee protections are out the window too?
On the third hand, the specifics of this case strongly favor the business owner. The race cases in the 1950's were about in-person, local businesses -- blacks might realistically not find any business owner in town willing to take their business -- while Web design is inherently a cyberspace activity, and a same-sex couple today that wants a professionally-designed Web site for their wedding will have no difficulty getting one -- in fact, they can find lots of Web designers who are themselves LGBTQ.
On the fourth hand, this isn't a real case, and nobody has standing. As discussed here, when the case started, the "Web site designer" had never actually built a Web site for a paying customer; she went to court to invalidate a state law affecting the hypothetical situation that she might be asked to build one for a same-sex wedding. When she eventually "received" such a request, part way through the case, it turned out to be in the name of a straight guy who was already married to a woman and hadn't requested any Web-site-design services (indeed, he was a Web site designer himself). Why did this case get anywhere near the Supreme Court?
And then there's Affirmative Action. It's been around for all my life, but it's always been vulnerable to reasonable criticisms. As Justice Roberts wrote in 2007, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Or in fewer words, "two wrongs don't make a right." AA, as it's existed for decades, has demanded a racial preference now that has concrete positive and negative effects on specific people, to rectify racial preferences (and much worse!) that happened decades or centuries ago by a broad category of people to another broad category of people, few of whom are alive to see justice done today. And it's always easier (for both the courts and ordinary people) to see, and rectify, specific harm done to specific people than broader harm to broad groups of people. It's a political loser, and has been since the 1970's.
Another legitimate criticism of AA was always "when will it ever end?" If we justify it as a temporary measure to bring people back to a level playing field, but in practice (as seems plausible) racial preferences in society follow more of an exponential-decay curve and never quite reach zero, then what criterion can justify declaring it "done"? The US still puts a lot of stumbling blocks in front of racial minorities, but far fewer than it did 50 years ago, which was far fewer than 100 years ago, which was far fewer than 200 years ago.
So all my life, I've been not alone in thinking "I agree with the goals of AA, but is there a better way to achieve those goals?" Yes, blacks have been disadvantaged in a lot of ways, but can we target AA at the mechanisms of that disadvantage rather than at its original motivation? For example, many elite colleges perpetuate old racial preferences without mentioning race by preferring the offspring of alumni, especially rich alumni; we could start by eliminating that. And one could certainly apply AA on the basis of family wealth and income rather than race: this would include poor white families (whose ancestors may have been underpaid and oppressed sharecroppers not much better off than their black neighbors), and it would automatically give more of a "hand up" to those (of any race) whose ancestors got screwed over the most than to those who were less harmed. Likewise, colleges could make a point of accepting a certain number of students from "bad neighborhoods" with poor, underfunded public schools; this would automatically benefit blacks in one inner city, Hispanics in another, and whites in Appalachia, all without mentioning race.
Interestingly, the same SCOTUS that just struck down racial preferences for college admission only a few weeks earlier accepted racial considerations in drawing voting-district lines in pursuit of something like proportional representation. I haven't read the two decisions, but the most obvious difference seems to be the "specific/general" distinction I made above: considering race in college admissions affects the careers and lives of specific individuals, while considering race in drawing districts affects the ability of a group of people to elect a representative of their choice without much changing any individual's rights.
Even that is philosophically dubious -- in an ideal world, government and law would be race-blind, so anything race-conscious they do to reach that ideal world is suspect -- so a better answer for the voting-district question is a voting system that automatically produces proportional representation, not only by race but by any criterion the voters find important. I discussed this at this post.
The other two are more problematic.
On a private business owner refusing to build a Web site about a same-sex wedding: there really is a legitimate argument that people can choose what jobs to take, what business contracts to enter into. Particularly in a case like this in which the contract in question requires the business owner to do significant creative expression, aka "speech", in support of what the customer wants. If you run a private advertising company and are approached by the Baby-Seal-Clubbing Cooperative of Newfoundland for a campaign to improve their image and persuade the public that clubbing baby seals is good and laudable, don't you have the right to refuse that job because it violates your personal morals as an advertiser?
On the other hand, that's pretty much the argument somebody might have used a hundred years ago to defend excluding blacks, or Jews, or Irish, as customers from a particular business. If the Supreme Court says the right of a business to pick and choose its customers outweighs the right of a customer to patronize a business that's "open to the public", are racial exclusions next on the chopping block? Can a business refuse a mixed-race customer on the basis of the moral/religious belief that miscegenation is wrong? And if a business can exclude customers on moral grounds, it can presumably also exclude employees on moral grounds (since that's a much closer business arrangement); does that mean a lot of employee protections are out the window too?
On the third hand, the specifics of this case strongly favor the business owner. The race cases in the 1950's were about in-person, local businesses -- blacks might realistically not find any business owner in town willing to take their business -- while Web design is inherently a cyberspace activity, and a same-sex couple today that wants a professionally-designed Web site for their wedding will have no difficulty getting one -- in fact, they can find lots of Web designers who are themselves LGBTQ.
On the fourth hand, this isn't a real case, and nobody has standing. As discussed here, when the case started, the "Web site designer" had never actually built a Web site for a paying customer; she went to court to invalidate a state law affecting the hypothetical situation that she might be asked to build one for a same-sex wedding. When she eventually "received" such a request, part way through the case, it turned out to be in the name of a straight guy who was already married to a woman and hadn't requested any Web-site-design services (indeed, he was a Web site designer himself). Why did this case get anywhere near the Supreme Court?
And then there's Affirmative Action. It's been around for all my life, but it's always been vulnerable to reasonable criticisms. As Justice Roberts wrote in 2007, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Or in fewer words, "two wrongs don't make a right." AA, as it's existed for decades, has demanded a racial preference now that has concrete positive and negative effects on specific people, to rectify racial preferences (and much worse!) that happened decades or centuries ago by a broad category of people to another broad category of people, few of whom are alive to see justice done today. And it's always easier (for both the courts and ordinary people) to see, and rectify, specific harm done to specific people than broader harm to broad groups of people. It's a political loser, and has been since the 1970's.
Another legitimate criticism of AA was always "when will it ever end?" If we justify it as a temporary measure to bring people back to a level playing field, but in practice (as seems plausible) racial preferences in society follow more of an exponential-decay curve and never quite reach zero, then what criterion can justify declaring it "done"? The US still puts a lot of stumbling blocks in front of racial minorities, but far fewer than it did 50 years ago, which was far fewer than 100 years ago, which was far fewer than 200 years ago.
So all my life, I've been not alone in thinking "I agree with the goals of AA, but is there a better way to achieve those goals?" Yes, blacks have been disadvantaged in a lot of ways, but can we target AA at the mechanisms of that disadvantage rather than at its original motivation? For example, many elite colleges perpetuate old racial preferences without mentioning race by preferring the offspring of alumni, especially rich alumni; we could start by eliminating that. And one could certainly apply AA on the basis of family wealth and income rather than race: this would include poor white families (whose ancestors may have been underpaid and oppressed sharecroppers not much better off than their black neighbors), and it would automatically give more of a "hand up" to those (of any race) whose ancestors got screwed over the most than to those who were less harmed. Likewise, colleges could make a point of accepting a certain number of students from "bad neighborhoods" with poor, underfunded public schools; this would automatically benefit blacks in one inner city, Hispanics in another, and whites in Appalachia, all without mentioning race.
Interestingly, the same SCOTUS that just struck down racial preferences for college admission only a few weeks earlier accepted racial considerations in drawing voting-district lines in pursuit of something like proportional representation. I haven't read the two decisions, but the most obvious difference seems to be the "specific/general" distinction I made above: considering race in college admissions affects the careers and lives of specific individuals, while considering race in drawing districts affects the ability of a group of people to elect a representative of their choice without much changing any individual's rights.
Even that is philosophically dubious -- in an ideal world, government and law would be race-blind, so anything race-conscious they do to reach that ideal world is suspect -- so a better answer for the voting-district question is a voting system that automatically produces proportional representation, not only by race but by any criterion the voters find important. I discussed this at this post.
no subject
no subject
no subject
Another factor for the second one is that there's a big difference between something that requires personal investment, like website design, and something that's more commodotized, like a grocery store. Groceries don't care who buys them and the grocer doesn't need to do anything customer-specific. I think one can argue that the store must serve all paying customers without requiring the designer to promote clubbing baby seals.
I wonder whether a therapist who has been subjected to some major trauma is permitted, by law and professional ethics, to decline to treat that trauma in others; is one allowed to decline exposure to something one knows will be personally triggering? And what if there is some correlation to a legally-protected class -- like, maybe your trauma involved priests and so you decline to treat Catholics?
If we allow the therapist to avoid being triggered, but do not allow the web designer to do so, then are we into the realm of deciding whose (or which) triggers or personal reactions are "real" and which must be set aside in the name of business equality? I don't know what the answer is, but I'm uncomfortable letting courts decide which squicks are acceptably squicky.