First Monday In October . . .

. . . is upon us, so here comes the New York Times Supreme Court maven, Adam Liptak, with a front-page story to guide the Great Unwashed through the thicket of this term’s SCOTUS calendar. Naturally, his list of cases to watch is politically correct, and omits entirely any reference to this term’s taking case, Arkansas Game & Fish Commission v. United States, in which SCOTUS will hear oral arguments next week. Adam Liptak, Justices Facing Weighty Rulings and New Dynamic, N.Y. Times, Sep. 30, 2012, on the front page, no less.

In the Arkansas case, the  lower court held that a temporary taking (by flooding and the resulting destruction of standing timber) was not a compensable taking within the meaning of the Fifth Amendment. Which if you stop and think about it for a moment was an absurd holding because condemnors, including Uncle Sam, take leaseholds and temporary easements by eminent domain all the time. Some of the famous, precedent-setting eminent domain cases of World War II vintage, like Kimball Laundry and General Motors,  were compensable temporary takings.

As it turned out, pace Mr. Liptak, the NY Times later found the Arkansas case worthy of a full-bore editorial comment. Go figure.

So what does the NY Times consider worthy of mention? Let’s see. There’s affirmative action (whether the University of Texas was justified in dinging a qualified applicant because using  a “race conscious” admissione process it chose another, minority applicant instead). Then there is good ol’ “same sex marrriage,” a hardy perennial if ever there was one, and the Voting Rights Act of 1965, to say nothing of the question whether federal courts have jurisdiction over lawsuits arising in foreign countries, against private companies said to be “complicit” in human rights abuses by foreign governments. That one remids us of a line of a California judge who characterized a certain type of tort case as “a search for a solvent bystander.” Other than that, there is nothing of interest in the Big Court this term — which is to say, of interest to the New York Times.

We claim no expertise in any of these topics, but the Lord works in mysterious ways, and so we find ourselves in the retroactive capacity of a prophet in the affirmative action debacle. Back in 1979, we wrote this:

“The U.S. Supreme Court increasingly grows institutionally incompetent to discharge its central function of definitive construction of the Constitution. Controversies that divide the country for years emerge from the marble temple in Washington in a form that can be charitably dexcribed as bewildering; cases such as Bakke,  for example, resolve nothing and only assure decades of litigation certain to consume kings’ ransoms in resources, with no assurance that in the end we will have any reliable guide.” Gideon Kanner, Competence, Competence, Who’s got the Competence? 65 ABA Jour. 160 (Feb. 1979).

That was thirty-three — count ’em, 33 — years ago — and the Magnificent Nine are still screwing around with reverse discrimination which has been liguistically transmogrified into the more polite sounding (or is it politically correct?) term “affirmative action.” But call it what you will, it inherently involves giving preference to less  qualified applicats for sought-after position, over those of better-qualified ones. Quibble all you want about the terminology, but that’s what it is. So it shouldn’t come as a surprise to our readers that we’re agin’ it. If indeed we are to treat minority folks as equals — which is what sound moral standards and the law demand — they should be treated as equals, not as privileged folks whose privileged position stems from the facts that their ancestors were badly treated.

By ignoring that principle, the topic of affirmative action has spawned endless litigation that so far, hasn’t come close to a solution of the problem. Why? Because the Justices have chickened out time and again, and have refused to confront and resolve the basic problem: racial and ethnic discrimination is immoral and illegal, and it makes no difference whether it is practiced so as to favor one group or another.

Bottom line: If you want to read the best comment ever written on this subject — short, insightful and witty, read William Kai-Sheng Wang, The Devil Visits Justice Powell, Los Angeles Lawyer, July-August 1979, at p. 34. If you can think of a better comment on the wretched Bakke case, do let us know what it is.

And so we await the outcome of this controversy in which six Catholics and three Jews, mostly from New York, will be lecturing a traditionally and still largely Protestant country on the virtues of diversity. We can’t wait.

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