Chris Eisgruber, the President of Princeton University, recently expressed concern that universities are perceived “right or wrongly, as blue dots” in a politically divided America and thus said that universities must be concerned with political diversity. Some other university leaders have also cautiously suggested that the academy may put out the welcome mat for the right. Nevertheless, there is reason for doubting that political diversity will be increased or discrimination against conservatives and libertarians ended in the elite university setting. The causes of political imbalance and of discrimination are entrenched and are unlikely to change soon.
The cowardice of Fisher II suggests that Justice Anthony Kennedy fears another confrontation by the “Wise Latina.”
Justice Anthony Kennedy’s milquetoast 4-3 opinion in Fisher v. University of Texas (Fisher II) has been lambasted from all directions as “a devastating blow to the cause of a color-blind Constitution” (by John Yoo), a “logical pretzel” (by the Wall Street Journal), and a “hedgy, compromise opinion” representing a “pyrrhic victory” for UT that “paves the way for more lawsuits against more universities in the future” (by The Daily Beast). The most damning criticism, however, was mounted by Justice Samuel Alito, whose blistering 51-page dissenting opinion begins with these words: “Something strange has happened since our prior decision in this case.” Something strange, indeed.
Last week brought more evidence that a jurisprudence of empathy completely undermines the rule of law. Recall that President Obama, the most famous advocate of this kind of jurisprudence, suggested that empathy would make a difference in only a relatively few cases, because it had no role to play when the law was clear. I have previously suggested that empathy does not even help resolve those cases, because it’s almost always possible to have empathy for both sides. But Justice Sonia Sotomayor, his first Court appointment, shows that jurisprudence of empathy cannot be limited to hard cases. Instead, it leads her to disregard clear law in the cases that most tug at her heart.
The latest example comes in Puerto Rico v. Franklin California Tax-Free Trust. There the Court held that Puerto Rico could not create a bankruptcy law to govern the debts of its public utilities, because it was prohibited by the plain language of the federal bankruptcy act from creating its own bankruptcy law. Puerto Rico attempted to evade this prohibition by noting another provision of the bankruptcy code: “The term ‘State’ includes the District of Columbia and Puerto Rico, except for the purpose of defining who may be a debtor under chapter 9 of this title.” (emphasis added).