Brookings: Topics - U.S. Supreme Court

What Should the Supreme Court Do About Affirmative Action?

Henry J. Aaron — Mon, 20 May 2013 10:42:00 -0400

Author's note: the following review of the book Mismatch: How Affirmative Action Hurts Students Its Intended to Help and Why Universities Won’t Admit It by Richard H Sander and Stuart Taylor, Jr. was commissioned by Leon Wieseltier of the New Republic on September 10, 2012. It was submitted on January 30, 2013. No editorial comment having been received to date, I am posting it on the Brookings web site.

The Supreme Court decision in Brown versus Board of Education was a watershed event in several respects. It crowned a lengthy legal campaign to overthrow segregation in public schools. It rapidly widened into a multi-front campaign to assure that African Americans, other minorities, and women would not be excluded from any important aspect of American life. And it invoked social science in support of a fundamental reinterpretation of the Constitution.

Following Brown, it soon became clear that removing legal barriers was not enough to end the legacy of discrimination. Lyndon Johnson’s 1965 speech at Howard University stated bluntly that “We seek not just freedom of opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.”

To counter the effects of past discrimination, Johnson said, it is necessary not just to remove barriers but also to offer help. Some assistance was procedural. Selective colleges, universities, and graduate schools began for the first time to recruit minorities actively and to mentor them. Other assistance was substantive, such as making race, sex, or national origin a ‘plus factor’ for jobs, contracts, and college admission. Programs of this sort immediately raised knotty conundrums for law, ethics, and social science. Were they constitutional? Were they fair? Did they work?

The legal problem was obvious. The 14^th amendment states: “No State shall...deny to any person within its jurisdiction the equal protection of the laws.” Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance. Title VII of the Civil Rights Act flatly bars consideration of race in hiring and promotion decisions. Many universities are state chartered and supported. Private and public institutions of higher learning receive federal contracts. The constitution and civil rights laws make no exception for discrimination practiced to redress past injustices.

Ethical issues are also inescapable. Giving African Americans or Hispanics a special break does not increase the number of jobs or slots in university classes. Giving them an edge means pushing others back in the queue. Many of those ‘others’ never personally did anything wrong. If giving such edges to past or present victims of discrimination was accepted, how large an edge was it fair to give and for how long?

In its earliest phases, affirmative action clearly helped its intended beneficiaries. In 1933 when Harold Ickes and his two lieutenants, Clark Foreman and Robert Weaver—later the first black cabinet officer under president Johnson—required that blacks be hired to help build public housing, there could be little doubt that African Americans benefitted from their action. When Richard Nixon’s Secretary of Labor, George Shultz, commented about discrimination in the building industry: “We found a quota system; it was there; it was zero,” there could be no doubt that moving from zero would help those who had been excluded. The nation was so far from the goal of fair treatment of minorities and women that possible conflicts with other objectives seemed remote. But when selective colleges and universities began to admit minority students with comparatively weak academic credentials, many of whom got poor grades and dropped out at distressing rates, a new question arose...did race preferences, at least in higher education, really help those they were intended to help?

Research on the impact of preferential admissions in higher education and litigation over its constitutionality ran on parallel tracks.

The policy of boosting enrollments at selective universities and colleges from what came to be called ‘under-represented minorities’ developed rapidly during the 1960s and 1970s. It coincided with efforts by those institutions to become genuine meritocracies. Although prestigious undergraduate and graduate programs had always favored the academically talented, they also held many slots for the offspring of previous graduates and generous donors. Athletic or artistic skills helped too, of course. Discrimination in admissions was routine, primarily to hold down the numbers of bright kids with the “wrong” religion or cultural background.

Then in the 1960s and 1970s, the weight attached to good grades and high test scores on entrance exams soared. Bragging rights came to those colleges whose entering classes had the highest scores on college entrance examinations. Some slots were still held for the progeny of previous graduates, the well-connected, the financially generous, and the artistically talented or athletically skilled. But academic standards for admission rose at both the undergraduate and graduate level. In simple terms, the ‘good’ schools, more than ever before, became academically excellent.

As far back as the 1970s concern grew that the policy of giving an edge to African Americans, Hispanics, and other members of under-represented minorities, however well-intentioned, might be doing more harm than good. Giving applicants from these groups an edge in admissions necessarily meant that, on the average, they came with weaker academic credentials than did whites. To be sure, selective schools offered matriculants big advantages—enriched environments, good connections, and, to those who graduated, a valued credential. On the other hand, students without adequate preparation might find the work just too difficult. As a result, they might even learn less than they would at less selective institutions. They might suffer stigma or be marked as second-raters or shamed as beneficiaries of unearned advantages, as many critics of affirmative action claim and some supporters fear. The result would be low-academic performance, high drop-out rates, wasted time and money, and, in extreme cases, blighted lives. The risk of these adverse effects would be larger the greater the gap between the student’s preparation and the norm at the institution they attended. This, in brief, was known as the mismatch hypothesis.

Determining whether a mismatch effect actually exists is extremely difficult. Even if admissions were race blind and even if there were no mismatch effect whatsoever, African Americans and Hispanics admitted to selective colleges and universities would predictably have lower grades and graduate a lower rates than do whites. This expectation is in no manner racist. It follows directly from two indisputable facts. African Americans and Hispanics applying to college have lower test scores and high-school grades on the average than do whites; and test scores and grades both are predictive of academic performance.

A hypothetical example illustrates how these two facts will produce different success rates for various groups. Imagine that colleges use an academic index for selecting students. The index can take on three values: 1 (high), 2 (medium), or 3 (low). Those with a higher academic index do better on the average in college than those with a lower score. Imagine also that out of every 100 whites, 35 score 1, and 35 score 2, and that out of every 100 African Americans and Hispanics 10 score 1 and 50 score 2. Selective schools admit only those who score 1 or 2, and they do so in a race-blind manner. Half of whites but only one-sixth of African Americans and Hispanics score 1. Those who score 1 do better in college than those who score 2. It follows that whites will do better in college on the average than will African Americans or Hispanics. This conclusion would not follow if tests and grades under-predicted performance of minorities relative to that of whites. But repeated studies have shown that tests and grades do not under-predict performance of African Americans and Hispanics.

The observation that African Americans and Hispanics who enroll at selective universities have lower qualifications for admission than do whites should therefore come as no surprise. Affirmative action adds to the difference between test scores and grades of entering students. But gaps would exist even if there were no affirmative action, and whether or not mismatch exists.

So, the challenge...how can one tell from the observation that African Americans and Hispanics do less well in college than do whites at selective schools whether this gap results from mechanical reasons of the sort just described or from harm inflicted through mismatch?

Simply comparing grades and graduation rates of various groups is not enough. The undeniable fact that students from under-represented minorities get poorer grades and drop out more often than white students do proves nothing about whether affirmative action helps or hurts its intended beneficiaries. One could go further and measure whether students at selective institutions do better or worse than do students with similar test scores and grades at other colleges and universities.

That is just what Derek Bok and William Bowen, former presidents of Harvard and Princeton, respectively, did in their evocatively titled book, The Shape of the River. This study, published in 1998, drew on a rich data set developed with the support of the Mellon Foundation, which Bowen then headed. The survey reported on a large data set—College and Beyond—reporting the college experiences, graduation rates, and subsequent earnings of 93,660 students who graduated from thirty-four select universities and colleges in 1951, 1976, and 1989. Using statistical techniques that controlled for the expected influence of high-school grades, pre-college admission tests, race, and certain other characteristics, the authors found that African-American students who attended elite universities did as well as or better than African-American student who attended less elite institutions. The authors reported that they found no evidence to support the mismatch hypothesis.

The Bok-Bowen study was highly influential. The authors are highly respected. The survey was large. The information it contained was broad and detailed. Even so, the survey data were not ideally suited to test the effects of affirmative action. The earliest surveyed cohort attended college before affirmative action was much practiced and it is not clear to what extent that cohort drove the results. The data came mostly from highly selective institutions. Furthermore, because the data have not been freely available, few scholars could check the Bok-Bowen findings or do additional analysis. The importance of making data available so that other scholars may try to replicate results and identify errors hardly needs emphasis in light of recent controversies regarding the impact of government debt on economic growth.

Bowen and other co-authors revisited the question of how college affects students in 2009 with a new study, Crossing the Finish Line, based on an even larger survey. This study reported on the experiences of 124,522 freshmen who began college in 1999 at one of fifty-seven four-year public universities. These institutions were generally less selective than those included in the College and Beyond survey. Bowen reported some startling results. Regardless of the quality of the high schools that students attended, their grades predicted college performance far better than did standardized tests. The 2009 study also confirmed the major finding of The Shape of the River—that after controlling for high-school grades, test scores, race, and socio-economic status, students were more likely to graduate from more selective than from less selective universities. Once again, Bowen and his co-authors found no evidence to support the mismatch—what they called the ‘over-match’—hypothesis. Students are well-advised, they said, to enroll in the most selective institution that will accept them.

Critics questioned whether the Bok-Bowen studies provided support for affirmative action. Invoking considerations of fairness, Stephen and Abigail Thernstrom noted that high graduation rates from elite institutions reflected not only the high qualifications of enrollees, but the high expectations for graduation at them. Besides, they emphasized, giving a race- or ethnicity-based edge to some necessarily involves a race- or ethnicity-based handicap for others. One of those groups with a race-based handicap, they noted, are Asians, whose academic credentials on the average outshine those of whites and who suffered much discrimination in American history.

Others argued that ordinary survey data are inherently inadequate to test the mismatch hypothesis. No survey can measure all educationally-relevant student characteristics. Specifically, surveys cannot measure aspirations or mental toughness, which are relevant to educational outcome and may be correlated with the schools students attend. Many social scientists argue that the best way, and sometimes the only adequate way, to test the effect of an intervention is the randomized experiment. Such methods are routine in medical and agricultural research, but they are not normally available to those testing the effects of affirmative action. Students cannot be randomly assigned to colleges. And, even if they could be, the very act would color the results. Normally, analysts are stuck with survey data. They can do no more than control statistically for every influence they can measure and hope that omitted factors are not very important.

From the earliest years of affirmative action, those denied admission to schools that gave minorities a race-based or ethnicity-based edge have challenged the practice in court. In 1978, the Supreme Court ruled in The Regents of the University of California v. Bakke that the constitution barred the university from setting aside a fixed number of slots in its medical school class for under-represented minorities. But, universities could use race as a ‘plus’ factor in pursuit of ‘diversity,’ which, the Court said, is a legitimate educational goal. To this day, however, the Court has not defined exactly what diversity is or how one would know if it had been achieved.

Breaking with Bakke, the federal Circuit Court serving Louisiana, Texas, and Mississippi ruled in 1995 in Hopwood v. Texas that the University of Texas Law School could not use race as a factor in admissions. The case never got to the Supreme Court, however, because Texas dropped the challenged admissions practices.

Seven years later, the Supreme Court heard a pair of challenges to admission practices at the University of Michigan. For undergraduate admissions, Michigan used a point scale based on grades, test scores, and other factors. One hundred points assured admission. Under-represented minorities received 20 points automatically. In Gratz v. Bollinger, by a 5-4 margin, the Court reaffirmed that the pursuit of diversity is a legitimate goal, but it ruled that Michigan’s procedure was not ‘narrowly tailored,’ did not in general treat each applicant individually, resembled a quota system, which the Court had disallowed in Bakke, and was therefore unacceptable.

At the same time, also by a 5-4 vote, the Court upheld a race-conscious admission policy by the Michigan Law School. In Grutter v. Bollinger, the court said that the use of race was acceptable because the law school considered many factors and did so on an individual basis. The swing vote in both cases and author of the opinion of the Court was the now-retired Justice Sandra Day O’Connor, who has been succeeded by Justice Samuel Alito, widely thought to be less sympathetic than O’Connor to affirmative action.

The legal history is marked by chaotic disagreement. Not only has the court been divided, but the majorities have disagreed in the reasoning that has led to their judgments. For strong minded, independent jurists to reach a common position by different reasoning is not unusual. But the opinions reflect unresolvable internal conflicts. The Constitution guarantees equal protection, irrespective of race, national origin, sex, and age. Yet, American history is redolent of despicable violations of those principles. When, at last, Congress and private groups began to take steps to counter the legacy of discrimination, the highest court has been willing to curb, but not bar, these measures—at least, not yet.

While the idea that the best qualified people should get jobs, the best proposal should win the contract, and the best students should be admitted to selective colleges commands widespread support, few people adhere rigidly to the principles of meritocracy. They understand that in many cases no clear or reliable metrics exist for measuring merit. Furthermore, once one acknowledges that colleges and universities may legitimately consider factors other than test scores and grades in determining which applicants should be admitted, it is inevitable that some students refused admission will be better qualified on academic grounds than those admitted.

The point made in virtually every legal brief by a litigant complaining of discrimination because an African American or Hispanic with lower test scores or a weaker academic record was admitted reflects a profound confusion—such a result is inescapable once other criteria for admission are allowed to influence results. And because race, musical talent, athletic skills, and other non-academic characteristics predict academic performance less well than do grades and test scores, it is likely that those admitted because of such ‘non-academic’ qualifications will perform less well, on the average, than those admitted for purely academic reasons. Their grades are likely to be lower and they are likely to graduate at lower rates than those with stronger grades and test scores. Other influences, such as compensatory programs for the ill-prepared, easy grading (for athletes), or enrollment in ‘gut’ courses can partly or fully offset such tendencies. But the tendency is basic.

The issue of whether affirmative action in education is constitutional has returned to the Supreme Court docket. On February 21, 2012 the Supreme Court agreed to hear arguments in the case of Fisher v. Texas. Oral arguments took place on October 10, 2012. Outside interest in the case has been intense. The court received 90 ‘friend of the court’ (amicus curiae) briefs from interested parties, including social scientists.

Following the Hopwood decision, Texas adopted a simple policy of admitting applicants in the top 10 percent of Texas high-school graduating classes. Although the top-10-percent formula sacrifices some academic selectivity, it is a transparently reasonable admissions policy for a state-chartered institution dependent on state funds for part of its budget. It does not explicitly involve race or ethnic origin, but de facto residential segregation guarantees that this formula will result in the admission of more African Americans and Latinos than if admissions were based on test scores. Since its adoption, this formula has accounted for 60 to 80 percent of undergraduate admissions to the University of Texas. Following the Grutter decision, which sanctioned admission policies that considered race in a narrowly targeted, individual manner, Texas instituted what it called a “holistic” process to govern other admissions. The holistic admissions procedure uses both an academic index, based on test scores and grades, and a personal achievement index based on a wide range of other factors including two essays, family background, activities in the community and elsewhere, and race.

Ms. Fisher, a white Texas high school graduate, was in the 12^th percent of her class and therefore was not admitted on the 10 percent plan. Nor was she admitted through the alternative selection process. She was offered a place on a waiting list, which she refused. She challenged the constitutionality of the Texas admission policy, claiming that but for her race she would have been admitted and was thereby unconstitutionally denied equal protection under the law.

The briefs of the parties to the case focus on whether the use of race in the Texas formula does or does not qualify as ‘limited and individualized,’ as specified by Justice O’Connor in Grutter v. Bollinger. But the court may go further by limiting or overturning Grutter, and at least four justices are thought to be disposed to do so. Persuasive evidence that affirmative action harms those it is intended to help would buttress the ethical foundation for such a position. One of the amicus briefs, by UCLA law professor Richard Sander and legal journalist Stuart Taylor, argues just that. Their book, Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It, is a lengthy and rich argument in support of this position. So significant is this indictment of affirmative action that another amicus brief, by a veritable Who’s Who of empirical social scientists is devoted to rebutting the Sander/Taylor brief. Social scientists submitted several other amicus briefs, some in support of Ms. Fisher’s appeal, some opposed.

Mismatch extends and elaborates an indictment of affirmative action first presented by Sander in 2004 in a Stanford Law Review article. That article provoked intense controversy, personal invective, and allegations of data suppression. Mismatch recounts this controversy in score-settling detail and is, thus, also a personal memoir and an expose of intellectual politics in the academy, as well as a layman’s guide to social science research on a tricky subject. Co-author Stuart Taylor comes to this tale with the background of having written Until Proven Innocent, a chilling and devastating expose of the way a rogue—and subsequently disbarred—district attorney railroaded Duke lacrosse players after a stripper falsely accused them of rape, and tells how Duke faculty members and administrators rushed to condemn the players despite abundant warning signs of prosecutorial abuse.

Sander and Taylor do not argue that affirmative action is inherently harmful to its intended beneficiaries, but rather that it is pushed to a damaging extreme. To make their case, they lay out a theory of how affirmative action, as practiced by the most select universities and colleges, ramifies through much of higher education. A few top universities are able to attract most of the academically able African Americans and Hispanics. Although the academic credentials of these students, on the average, are not as strong as those of their white or Asian classmates, these African-Americans and Hispanic students are mostly able to handle the academic challenges they face at these top schools. Sander and Taylor argue that is why Bok and Bowen found that most of the minority students they surveyed graduate and do well professionally.

But that is just part of the story. The selective institutions, Sander and Taylor argue, so seriously deplete the limited pool of academically well-qualified minorities that lower tier schools, also trying to meet affirmative action goals, admit applicants with credentials so weak that these students do less well than they would at still less selective institutions. Mismatch can be inferred as well, Sander and Taylor argue, from the finding that a larger proportion of students with a given SAT score major in the difficult STEM subjects (science, technology, engineering, and math) at less-selective than at more selective schools.

The reasoning is straightforward. First-level courses in these fields that serve as pre-requisites for upper division study weed out students who are comparatively weak at the institutions they are attending. Because affirmative action allows minority students to attend colleges where their academic preparation is comparatively weak, such students are more likely to get weeded out than they would be had they attended less-selective colleges and universities, where their academic preparation would have been more competitive.

The strongest evidence for the mismatch hypothesis comes not from data on undergraduate admissions but from information on law school graduates. The American Bar Association compiled data on thousands of law school graduates from a wide range of law schools—the Bar Passage Study (BPS). Because student grades and class rank depend, in part, on the average academic strength of classmates, students with a given academic index are more likely to get better grades at lower ranked law schools than they would at higher ranked law schools. Furthermore, African American and Hispanic students covered in the BPS were the beneficiaries of sizeable race- and ethnicity-based admission preferences at most law schools.

Based on data from the BPS, Sander and Taylor report two findings that, they argue, suggest mismatch. First, African American and Hispanic law school graduates with similar academic index scores (based on undergraduate performance) to those of whites passed the bar at lower rates than did whites. But if one controlled for both academic index and law school grade point average, there was no significant difference in passage rates of African Americans, Hispanics, and Whites. The reason why relative class standing influences bar passage, they argue, is that instruction and grading are geared to the median student in each school. Students who are weaker than average at a given school will find it hard to keep up, will learn less than they would if instruction was geared to their level of preparation, and will therefore pass the bar exam at lower rates than they would had they attended a school better tailored to for their academic skills. This finding implies that law school students should not follow the advice from Bok and Bowen gave to undergraduates—go to the most selective school that will admit you—but should instead be very careful not to over-reach.

Could both Bok/Bowen and Sander/Taylor be correct? The curricula at professional and graduate schools are notoriously austere. The environment in law school is ruthlessly meritocratic to an extent true of few undergraduate programs. If the conditions between undergraduate and graduate schools and among undergraduate programs are sufficiently different, affirmative action might help in some cases and hurt in others.

An intense intellectual battle followed Sander’s 2004 article and continues to this day. One exchange illustrates how hard the issues are analytically and how difficult it is to reach consensus. Two members of the Yale Law School faculty, Ian Ayres and Richard Brooks, noted that not all African Americans surveyed in the BPS accepted admission letters from the schools they had listed as their first choices. Some went to lower choice schools that were mostly less selective than the first choice schools. The students in the two groups were otherwise similar. If mismatch were a problem, they reasoned, students who went to first choice schools would be more likely to get low grades and less likely to pass the bar than those who went to less select schools. In an initial draft, Ayres and Brooks found no such differences and stated that the evidence provided no support for the mismatch hypothesis.

Sander reports that Ayres and Brooks shared their analysis with him and that he pointed out errors, which they then corrected. After the corrections were made, Sander and Taylor claim that the corrected results closely match what the mismatch hypothesis suggests—those students who did not go to their first-choice, relatively select law schools got better grades, graduated at a higher rate, and were more likely to pass the bar on their first try. But, they assert, Ayres and Brooks refused to modify the text of their initial draft. In addition, Ayres and Brooks are among the signers of the amicus brief by quantitative social scientists which is highly critical of the methods that Sander and Taylor use. This brief states flatly: “Sander’s research has major methodological flaws—misapplying basic principles of causal inference—that call into doubt his controversial conclusions about affirmative action....Sander’s research does not constitute credible evidence that affirmative action practices are harmful to minorities....”

Quite apart from the analytical case that Sander and Taylor make against affirmative action, Mismatch is an expose of politics and back-biting in the academy. It charges that those controlling what should be publicly available data refuse access to people who it is feared will come up with politically objectionable answers. It charges critics with refusals to admit demonstrable mistakes. Both Taylor’s earlier book on the Duke rape case and Mismatch report enough unreasoned and unreasonable behavior in the name of political correctness to make one gag. Most importantly, Mismatch charges universities and colleges with a stunning lack of candor regarding the extent of affirmative action and refusal to provide data with which analysts could evaluate its effects.

Although Mismatch indicts affirmative action in its current form, Sander and Taylor recommend that affirmative action be modified not ended. They note that minorities who are favored by affirmative action disproportionately come from favored socio-economic groups, children of professionals and others with higher education. They recommend that racial preferences be no larger than preferences based on financial need and socioeconomic status. The emergence of growing economic inequality heightens the appeal of class-based affirmative action. Precisely how such balancing of racial, socio-economic, and needs-based factors might be achieved is not explained in the book. Others have also urged class-based affirmative action as both fairer and politically more acceptable than race-based affirmative action—notably, Richard Kahlenberg who has taken that position for nearly two decades. Unfortunately, Sander and Taylor leave a key question unanswered—if current race-based affirmative action harms intended beneficiaries, why wouldn’t a mix of some race-based and some class-based affirmative action also do so?

Particularly troubling for a technically minded reader/reviewer is the absence from a book running to nearly 300 pages of any clear, technical presentation of the mismatch hypothesis. The authors say at the outset that in order to keep the book to a reasonable length, they are omitting ‘technical or elaborating material’ but that such details can be found at their website. At various other points in the book, readers are also advised that they can find further detail at the same web site. As I write this review and after personal contact with both authors, the website remains without such supporting material.

What conclusions should the Court and the public take from Mismatch and the cacophony of conflicting research on the effects of affirmative action? First, universities and colleges should provide qualified analysts access to data on admission practices. It is not credible that universities would suffer irreparable damage if their admission practices were publicized. Nor is it believable that minorities who benefit from racial preferences would wilt from the stigma if these practices were spelled out. The failure of colleges and universities to divulge data on the way affirmative action operates should not be tolerated. The best way to correct any over-use or misuse of affirmative action is not to ban it but to insist that its operation be illuminated with hard data and further analysis.

Second, on the major theme—the charge that affirmative action hurts its intended beneficiaries—I believe that judgment must still be withheld. Sander and Taylor present a powerful case that it does so in particular instances. But the character of college and university programs and their objectives is enormously varied. It is much more important to make sure that African Americans and Hispanics are well-represented among tomorrow’s public officials and business leaders and that they are well trained than it is to assure racial or ethnic diversity among tomorrow’s mathematicians and biomedical researchers. Meritocratic values have their place. So too do the values of inclusiveness. If there was ever a place where one size does not fit all, it is in the treatment of affirmative action within the academy.

Authors

Henry J. Aaron

Image Source: © Jose Luis Magaua / Reuters

Let’s Go Down the Aisle Toward Legalized Pot

Jonathan Rauch — Fri, 05 Apr 2013 11:09:00 -0400

The recent finding, in a Washington Post-ABC News poll, that support for same-sex marriage has reached a remarkable 58 percent of Americans should make the Obama administration think hard. Not about same-sex marriage but about marijuana.

Anytime now, Attorney General Eric Holder is expected to make an announcement about marijuana, one of the administration’s trickier policy problems. In November, two states, Colorado and Washington, passed ballot initiatives — by strong margins — to legalize marijuana use. Both states established regulatory systems akin to those for alcohol, though Washington’s is somewhat more stringent. And both states acted in defiance of federal marijuana policy: The 1970 Controlled Substances Act makes marijuana illegal and places it in the same class as heroin.

How should the administration respond to this frontal challenge? The answer is: View it not as a threat but as an opportunity.

Many drug warriors disagree. They want the federal government to threaten state-licensed marijuana growers and distributors, and their bankers and landlords, with criminal enforcement. Several former directors of the Drug Enforcement Administration recently called on President Obama to launch a lawsuit preempting the states’ actions, much as he did in challenging Arizona’s immigration law a few years ago. (The Supreme Court delivered a mixed ruling on that challenge.)

Squashing the states, however, is easier said than done. All but a small fraction of the people who enforce the marijuana laws work for state and local governments and answer to state law. Although states cannot break federal law, neither must they step in and enforce it. Federal prosecutors probably could shut down regulated marijuana distributors in Colorado and Washington with relative ease by sending threatening letters to landlords and bankers. But that would leave those states, and others that follow, with the option of legalizing marijuana without regulating it, because unconditional legalization under state law is indisputably within the states’ power. The effect of removing states’ troops from the battlefield would be to strand the federal government with marijuana laws it could not enforce.

The chaos that might result would be counterproductive even (or especially) for drug hawks. Instead of shutting down the states’ experiments, then, the federal government might better serve the policy goals of the Controlled Substances Act by working with Colorado and Washington to concentrate federal and state enforcement on high federal priorities, such as preventing legalized marijuana from spilling across state borders.

There is another, more positive, case for cooperation as well. It is best understood by looking at the lessons of same-sex marriage.

In a number of important respects, marijuana legalization and same-sex marriage track closely. Both are controversial social issues about which public opinion has changed dramatically in the past few years; on both issues, polls show the public closely divided but tipping toward legalization.

Moreover, for both issues, young people are driving the trend; older opponents of legalizing both are exiting the scene. The issues’ demographics suggest that public opinion is virtually certain to continue shifting. A true national consensus, however, remains some distance away, and partisan and regional differences are sharp.

In recent years, the country has pushed many controversial issues — abortion, crime, education — up to the federal level. But same-sex marriage has taken the opposite path, with leadership left to the states. The result, though somewhat messy as policy, has been a remarkable political success at a time when the country has few to boast of. That some states could try same-sex marriage without betting the whole country reduced the stakes and contained the conflict. States’ experiments with gay marriage educed valuable information about its real-world consequences, or lack thereof, allowing for a better-informed, more rational debate.

Above all, localizing the dispute gave people across the country time to work out what they think and to adjust policies as public opinion changed. Had the country locked in a federal constitutional amendment banning gay marriage in the mid-2000s, policy and public opinion would today be drifting inexorably into conflict.

State leadership on marijuana policy has all of the same advantages as on marriage. It contains conflict by reducing the stakes; educes knowledge about what happens if marijuana policy is changed; and allows incremental adjustment to social change. For the federal government, yielding some measure of control over marijuana policy to the states is not a threat; it is an opportunity to manage change and preserve options. Painting federal policy into a corner serves no one, not even drug warriors.

There is, however, an important difference between marriage and marijuana. States have run family policy since colonial times; letting them lead on marriage was the default option. Marijuana will be much harder. The federal government has led the war on drugs for decades, and its ban on marijuana is written into not just federal statute but also into several international treaties as well.

Avoiding a state-federal train wreck over marijuana policy will not happen automatically. Finding a cooperative path requires creativity and energy from both levels of government. But the alternative won’t satisfy anyone, at least not for long.

Editor's note: This article by Jonathan Rauch originally appeared in the Washington Post. He is the author of “Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.”

Authors

Jonathan Rauch

Publication: Washington Post

Image Source: © Anthony Bolante / Reuters

Redirecting Students to Less Demanding Colleges Not a Strategy for Success in the Sciences

Matthew M. Chingos — Wed, 13 Mar 2013 11:00:00 -0400

Last week, I wrote about the “mismatch” hypothesis, which posits that the beneficiaries of affirmative action in higher education will not be able to keep up in a demanding environment and would in fact be better off had they not been given a leg up in the admissions process. I showed that there is no credible evidence supporting the mismatch theory, and that the opposite finding prevails: students are most likely to graduate by attending the most selective institution that will admit them.

The focus of my analysis last week was a November 2012 NBER working paper by a team of economists from Duke University using data from the University of California Office of the President (UCOP). I conducted a reanalysis of the UCOP data and showed that more appropriate methods yield findings that are not consistent with the mismatch hypothesis.

Last month, three of the four authors of the earlier study released a new NBER working paper on the effects of mismatch on the chances that students, especially underrepresented minorities, will graduate with science degrees. In other words, instead of looking at overall graduation rates as they did in the earlier paper, they focused on earning a degree in the sciences. The new paper claims to find strong evidence that students with weaker academic preparation are much more likely to be successful at a lower-ranked campus: “Our estimates suggest that the vast majority of minority students who begin in the sciences at UC Berkeley would be more likely to graduate with a science degree had they enrolled in a less-selective campus.”

Do the findings of the new paper hold up to careful scrutiny any better than the findings of the previous paper? Only marginally. Figure 1 shows the graduation rates, both in the sciences and overall, for underrepresented minority students who intended to major in the sciences and had SAT scores that placed them in the bottom quarter of all UC applicants (1050 or less) in the period before California banned affirmative action. Students in this group that attended a more selective university were slightly more likely to graduate with a degree in any field (as would be expected based on last week’s analysis), but slightly less likely to graduate with a degree in the sciences.

Is this finding the result of affirmative action? The authors of the February 2013 NBER paper argue that it is: “in a period when racial preferences in admissions were strong, minority students were in general over-matched, resulting in low graduation rates in the sciences… In contrast, non-minority students are generally well-placed for graduating in the sciences.”

But a closer look at the UCOP data casts serious doubt on this conclusion. Table 1 shows the relationship between campus selectivity and graduation rates in the sciences for different groups of students. Specifically, I calculate the expected increase in the chance that a student will earn a degree in the sciences associated with a 100-point increase in the average SAT score of the campus, controlling for the student’s SAT score, high school GPA, parental education, and family income. I do not use the problematic Dale-Krueger method used by the NBER paper’s authors for the reasons I discussed last week. Following the authors’ practice of separating out students by whether they intended to major in the sciences cuts the data very thin and results in very imprecise (and non-robust) estimates, so I combine all students together but control for whether each student indicated an intention to major in the sciences.

The upper-left number in Table 1 indicates that, prior to the affirmative action ban, URM students with the lowest SAT scores were about one percentage point less likely to graduate with a degree in the sciences if they attend a more selective campus. This is similar to what we saw in Figure 1. The relationship is similar for URM students in the upper three SAT quartiles and for white students in all but the top quartile, although those relationships are estimated less precisely and consequently we cannot confidently reject the possibility that there is no relationship between science graduation rates and selectivity for those groups.

If affirmative action were the reason for the slight negative relationship between selectivity and science graduation rates for URM students, then we would expect the relationship to go away in the period following the passage of Prop 209, which banned affirmative action in California. But Table 1 shows exactly the opposite finding: the negative relationship was substantially larger in the three-year period following the ban, for both URM and white students. And the relationship was strongest for the most highly qualified URM students in the period following Prop 209.

A simple before-and-after comparison should not be taken as definitive, as other factors could have changed between the 1995-1997 and 1998-2000 periods. But the pattern of results casts doubt on the idea that affirmative action was the driver behind the 1995-1997 results given that even stronger negative relationships appear in the 1998-2000 data.

The fact still remains that some students are slightly more likely to graduate with a science degree if they attend a less selective university, although it is unclear to what extent this relationship is biased by unobserved student characteristics.[1] But in any case, it’s unclear what to make of this finding given that overall graduation rates go in the opposite direction. Is it better to have a higher chance of persisting in the sciences if it is accompanied by an increased risk of dropping out altogether? And is it better to have a science degree from a lower-ranked school rather than a non-science degree from an elite campus such as Berkeley or UCLA?

There is no doubt that graduation rates, both in the sciences and overall, are too low, especially for students from disadvantaged backgrounds. Anyone who thinks the U.S. needs to increase the number of students who earn science degrees should be troubled by the high percentages of students who start out interested in science but end up switching to another field or dropping out. Persisting in the sciences is especially challenging for students with weak academic preparation. Figure 1 shows success rates of around 20 percent for low-scoring URM students, a stubbornly low rate that doesn’t vary much by campus.

Policymakers and higher education practitioners clearly need to seek ways to increase the student success in the sciences. But redirecting students to less demanding institutions, either through changes to admissions policies or college counseling practices, is a dubious strategy that at best increases success rates in science by small margins at the cost of increased dropout rates overall.

[1] The negative relationship becomes stronger when control variables are added. If sorting on unobserved characteristics occurs in the same direction as the observed characteristics, then the true (causal) relationship will be larger in magnitude than the estimated relationship.

Authors

Matthew M. Chingos

Image Source: © Jonathan Alcorn / Reuters

Are Minority Students Harmed by Affirmative Action?

Matthew M. Chingos — Thu, 07 Mar 2013 11:00:00 -0500

Affirmative action is back in the news this year with a major Supreme Court case, Fisher v. Texas. The question before the Court is whether the Fourteenth Amendment’s Equal Protection Clause permits the University of Texas at Austin’s use of race in its undergraduate admissions process. The Court may declare the use of racial preferences in university admissions unconstitutional when it decides the case in the coming months, potentially overturning its decision in the landmark Grutter case decided a decade ago.

Accompanying the general subject of affirmative action in the spotlight is the “mismatch” hypothesis, which posits that minority students are harmed by the very policies designed to help them. Justice Clarence Thomas made this argument in his dissent in the Grutter case: “The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition. And this mismatch crisis is not restricted to elite institutions.”

The mismatch idea is certainly plausible in theory. One would not expect a barely literate high-school dropout to be successful at a selective college; admitting that student to such an institution could cause them to end up deep in debt with no degree. But admissions officers at selective colleges obviously do not use affirmative action to admit just anyone, but rather candidates they think can succeed at their institution.

The mismatch hypothesis is thus an empirical question: have admissions offices systematically overstepped in their zeal to recruit a diverse student body? In other words, are they admitting students who would be better off if they had gone to college elsewhere, or not at all? There is very little high-quality evidence supporting the mismatch hypothesis, especially as it relates to undergraduate admissions—the subject of the current Supreme Court case.

In fact, most of the research on the mismatch question points in the opposite direction. In our 2009 book, William Bowen, Michael McPherson, and I found that students were most likely to graduate by attending the most selective institution that would admit them. This finding held regardless of student characteristics—better or worse prepared, black or white, rich or poor. Most troubling was the fact that many well-prepared students “undermatch” by going to a school that is not demanding enough, and are less likely to graduate as a result. Other prior research has found that disadvantaged students benefit more from attending a higher quality college than their more advantaged peers.

A November 2012 NBER working paper by a team of economists from Duke University comes to the opposite conclusion in finding that California’s Proposition 209, a voter-initiated ban on affirmative action passed in 1996, led to improved “fit” between minority students and colleges in the University of California system, which resulted in improved graduation rates. The authors report a 4.4-percentage-point increase in the graduation rates of minority students after Proposition 209, 20 percent of which they attribute to better matching.

At first glance, these results appear to contradict earlier work on the relationship between institutional selectivity and student outcomes. But the paper’s findings rest on a questionable set of assumptions, and a more straightforward reanalysis of the data used in the paper, which were provided to me by the University of California President’s Office (UCOP), yields findings that are not consistent with the mismatch hypothesis.

First, the NBER paper uses data on the change in outcomes between the three years prior to Prop 209’s passage (1995-1997) and the three years afterward (1998-2000) to estimate the effect of the affirmative action ban on student outcomes. Such an analysis is inappropriate because it cannot account for other changes occurring in California over this time period (other than simple adjustments for changes in student characteristics).

A key problem with the before-and-after method is that it does not take into account pre-existing trends in student outcomes. This is readily apparent in Figure 1, which shows that the graduation rates of underrepresented minority (URM) students increased by about four percentage points between 1992-1994 and 1995-1997, before the affirmative action ban. The change from 1995-1997 to 1998-2000 was smaller, at about three percentage points. The NBER paper interprets this latter change as the causal impact of Prop 209, but this analysis assumes that there would have been no change in the absence of Prop 209. If the prior trend had continued, then graduation rates would have increased another four points—in which case, the effect of Prop 209 was to decrease URM graduation rates by one percentage point.

Adjusting for student characteristics does not change this general pattern. The adjustment makes no difference in the pre-Prop 209 period, but explains about 36 percent of the increase in the immediate post-Prop 209 period (which is consistent with the NBER paper’s finding that changes in student characteristics explain 34-50 percent of the change). But if the 1992-1994 to 1995-1997 adjusted change was four points, and the 1995-1997 to 1998-2000 adjusted change was one point, then Prop 209 might be said to have a negative effect of three percentage points.

None of these alternative analyses of the effect of Prop 209 should be taken too seriously, because it is difficult to accurately estimate a pre-policy trend from only two data points. The bottom line is that there probably isn’t any way to persuasively estimate the effect of Prop 209 using these data. But this analysis shows how misleading it is in this case to only examine the 1995-1997 to 1998-2000 change, while ignoring the prior trend.

Second, the NBER paper finds that less-selective universities produce better outcomes among minority students with weaker academic credentials. This must be the case in order for “mismatch” to exist, but it runs counter to most prior research on the subject. The one exception is a 2002 study by Stacy Dale and Alan Krueger, which found no impact of college selectivity on earnings except among students from low-income families. However, the methodology of the Dale-Krueger study severely limits the relevance of its results for students and policymakers.

In order to control for unobserved student characteristics, Dale-Krueger control for information about the institutions to which students applied and were accepted. This takes into account potentially valuable information that is observable by admissions committees but not the researcher. But it is problematic because it produces results that are based on comparisons between students who attended more or less selective colleges despite being admitted to the same set of institutions. As Caroline Hoxby explains: “since at least 90 percent of students who [were admitted to a similar group of schools] choose the more selective college(s) within it, the strategy generates estimates that rely entirely on the small share of students who make what is a very odd choice.” In other words, the method ignores most of the variation in where students go to college, which results from decisions about where to apply.

The problem with the NBER paper is that it uses a variant of the Dale-Krueger method by controlling for which UC campuses students applied to and were admitted by. And the UCOP data are consistent with Hoxby’s argument: in 1995-1997, 69 percent of URM students attended the most selective UC campus to which they were admitted and 90 percent attended a campus with an average SAT score within 100 points of the most selective campus that admitted them (the corresponding figures for all UC students are 72 and 93 percent).

A more straightforward analysis is to compare the graduation rates of URM students with similar academic preparation and family backgrounds who attended different schools. The mismatch hypothesis predicts that URM students with weak qualifications will be more likely to graduate, on average, from a less selective school than a more selective one.

The data show the opposite of what mismatch theory predicts: URM students, including those with less-than-stellar academic credentials, are more likely to graduate from more selective institutions. I calculate graduation rates by individual campus that are adjusted to take into account SAT scores, high school GPA, parental education, and family income.[1] I restrict this analysis to URM students with SAT scores in the 900-990 and 1000-1090 range during the three years before Prop 209, which should be exactly the group and time period when mismatch is most likely to occur.

Figure 2 shows that for both of the low-scoring groups of URM students, graduation rates are higher at more selective institutions. Results for individual institutions vary somewhat, but the upward trend in Figure 2 is clear. I find a similar pattern of results in the period after Prop 209 was passed (not shown). The main limitation of this type of analysis is that it does not take into account unobserved factors such as student motivation that may be associated with admission decisions and student choice of institution. The Dale-Krueger method is meant to address this issue, but for the reasons explained above produces results that are not particularly informative.

A better solution is to find instances of students who attended institutions of differing selectivity for reasons unrelated to their likelihood of success. This is not possible with the UCOP data, but such quasi-experimental methods are used in two other studies that finds a positive relationship between selectivity and student outcomes. In a study published in 2009, Mark Hoekstra used a cutoff in the admissions process at a flagship state university to estimate the impact of attending that university on earnings. This strategy eliminates bias by comparing students who are very similar except that some were just above the cutoff for admission and others were just below. Hoekstra finds that attending the flagship increased earnings by 20 percent for white men.

In a more recent working paper, Sarah Cohodes and Joshua Goodman employed a cutoff-based approach to measure the effect of a Massachusetts scholarship that could only be used at in-state institutions. Students who won the scholarship were more likely to attend a lower quality college, which caused a 40 percent decrease in on-time graduation rates, as well as a decline in the chances of earning a degree at any point within six years.

These two studies do not directly address the mismatch question because they do not focus on the beneficiaries of affirmative action, but they show that taking into account students’ unobserved characteristics leaves intact the positive relationship between selectivity and student outcomes that has been consistently documented in the many prior studies that are less causally persuasive.

To truly put the mismatch theory to rest, rigorous quasi-experimental evidence that focuses on the beneficiaries of preferential admissions policies is needed. But the current weight of the evidence leans strongly against the mismatch hypothesis. Most importantly, not a single credible study has found evidence that students are harmed by attending a more selective college. There may well be reasons to abolish or reform affirmative action policies, but the possibility that they harm the intended beneficiaries should not be among them.

[1] Specifically, I estimate the coefficients on institutional dummy variables after including these control variables. For the controls I include dummy variables corresponding to the categories used in the UCOP data, as well as dummies identifying missing data on each variable so as not to lose any observations. The adjusted graduation rate for each institution is calculated as the difference in its coefficient estimate and Berkeley’s coefficient estimate plus Berkeley’s unadjusted graduation rate for the indicated group of students (i.e. Berkeley’s adjusted and unadjusted graduation rate are thus equal by construction).

Authors

Matthew M. Chingos

The Supreme Court Takes Up Same-Sex Marriage

Jonathan Rauch — Tue, 11 Dec 2012 10:28:00 -0500

I'm not sure what the headline writer at the New York Times meant by saying that the issue of same-sex marriage "pushes justices into overdrive." I suspect "underdrive" may be more like it.

The court agreed last Friday to take two landmark gay-marriage cases. In one, lower courts overturned Proposition 8, which banned gay marriage in California. In the other, lower courts overturned the Defense of Marriage Act (DOMA), which barred any federal recognition of states' same-sex marriages.

Bookmakers must be in clover with these two cases, because there are so many possible permutations to bet on. The court could go as far as to overturn DOMA and order national gay marriage as a constitutional right. It could go almost as far in the other direction, upholding DOMA and foreclosing not only gay couples' constitutional claim to marriage but gay individuals' claim that homosexuality is entitled to constitutional protection from discrimination. So, yes, the court could go into "overdrive." Attentive court-watchers, however, note two things:

The court asked to be briefed on whether the litigants in both cases have proper standing to sue, a question opened up by some unusual details of the two cases. The court, this suggests, is considering dismissing all the claims and just ducking out. That would probably leave California with gay marriage and the federal government with DOMA. Outside California, hardly anything would be changed.
In the case testing Proposition 8, the Ninth Circuit U.S. appeals court already narrowed the case to just being about California. That decision, too, gives the Supremes an easy way to turn a big national case into a much smaller local one.

It's possible to imagine a pair of five-four decisions giving gay-rights activists everything they want, with Justice Anthony Kennedy as swing vote and Justice Antonin Scalia writing the most scathing dissent of his frequently scathing career. Maybe, as conservatives have suggested, Kennedy is determined to write himself into the history books as the patron saint of gay rights.

But my guess—just a guess, of course, because who knows—is that Chief Justice John Roberts will nudge the court toward a broad consensus around narrow decisions, rather than vice versa. I can even imagine him getting unanimity for a ruling, in the Proposition 8 case, that tells everyone to come back with another case at some point in the future—when, not incidentally, the country will be closer to a consensus.

Getting the court's liberals to uphold DOMA, which has been roundly rejected by lower courts, is more of a stretch. Still, here's a possibility to bear in mind about the bang of the court's decision to take these two polarizing cases: it might well end with a depolarizing whimper.

Authors

Jonathan Rauch

Image Source: © Larry Downing / Reuters

Are We All Copyright Infringers?

John Villasenor — Sun, 28 Oct 2012 00:00:00 -0400

I’ve never thought of myself as a copyright infringer. But now I’m not so sure. My possible “crime”: I recently purchased a book in London’s Heathrow Airport to read on a flight back to the United States. While reading it onboard, it occurred to me that someone else I know would find the book interesting. Under a strained – but unfortunately no longer unthinkable – interpretation of U.S. copyright law, bringing the book home with the awareness that I might well lend or give it to that person could be a violation of Section 602 of Title 17 of the United States Code.

Whether or not innocuous behaviors like passing along a book bought lawfully overseas to a relative, friend or coworker constitute copyright infringement depends on the outcome of Kirtsaeng v. John Wiley & Sons, Inc., a case scheduled to be heard by the Supreme Court this week (background here).

Historically, the first sale doctrine has provided strong rights to owners of legitimately purchased copyrighted works. Once you buy a book, music CD, or movie DVD in the United States, you are free to later sell it, lend it to a friend, or donate it to a library or charity without seeking permission from the copyright owner. As the Supreme Court wrote in a 1998 decision, the “whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution.” However, in the 2011 ruling that set the stage for the Supreme Court argument in Kirtsaeng, the Second Circuit held that “the first sale doctrine does not apply to copies manufactured outside of the United States.”

If the Supreme Court arrives at the same conclusion, your ownership rights for copyrighted works you bought overseas and brought back to the United States will change – and not for the better. Why? Because the first sale doctrine affirmatively protects owners of lawfully purchased works by limiting the ability of a copyright holder to impede their downstream actions. In its absence, to comply with U.S. copyright law you would have to keep track, in perpetuity, of all foreign-sourced works in order to avoid inadvertently selling, lending, gifting, donating, or otherwise distributing them without permission from the copyright holder. You would be burdened with this task forever – or at least until the copyrights expire, which is often many decades in the future.

Of course, people can’t be expected to perform this kind of accounting on their personal possessions. Most things we own will part company with us sooner or later. In the long run, all of them will. Under the Second Circuit’s view of copyrighted items manufactured abroad, that parting, whenever it occurs, will often become an act of copyright infringement.

The implications of the Supreme Court’s Kirtsaeng decision could go far beyond imposing an obligation (which almost no one would follow) to track the provenance of personal items. Retailing giant Costco, for example, has filed an amicus brief [PDF] in the case citing the negative impact that upholding the Second Circuit’s ruling could have on its continued ability to offer low-cost goods to consumers. eBay is concerned [PDF] about the possible negative consequences to secondary markets. Goodwill Industries International’s amicus brief [PDF] raises the possibility of reduced donations. Some extremely well-known bookstores are worried [PDF] about a decision that could turn many of their routine transactions into violations.

Another less commonly articulated concern is the possible reciprocal impact on American individuals and American businesses abroad. If other countries were to adopt a view analogous to the Second Circuit’s, then Americans who travel overseas with copyrighted works legitimately purchased in the United States could find their ownership rights dramatically curtailed once they arrive on foreign soil. American businesses could be forced to drop the prices of their exported goods, because buyers would have increased exposure to claims from American copyright holders.

The potential for collateral damage from well intentioned – and, to be fair, in many ways very beneficial – copyright statutes is a consequence of the legislative dynamics at play when they were enacted. In drafting laws, there is a choice between 1) casting a wide net when defining unlawful behavior, and then assuming that the combination of generally reasonable enforcement and a rational court system will protect people who engage in harmless technical violations from being punished, or 2) casting a somewhat narrower net that leaves harmless, reasonable behavior clearly on the right side of the law.

Today’s copyright statutes often reflect the first approach, largely because they embody the concerns of well-organized industry groups of copyright holders, such as the music, movie, and publishing industries. It is completely reasonable for these industries to seek laws that will protect their valuable intellectual property and give them the tools they need to combat piracy and other abuses. But they have little incentive to oppose laws that are too expansive in scope. From their standpoint, it is desirable to have broadly worded statutes providing more flexibility to bring selective enforcement actions.

Copyright users, on the other hand, tend to be a much more diverse group. Use of copyright may be one of the only things in common among the American Library Association, the Association of Art Museum Directors, Costco, eBay, Goodwill, Google, and Powell’s Books – all of which have submitted amicus briefs urging the Supreme Court to reverse the Second Circuit’s ruling. As a result, the voices of copyright users have been more muted when Congress drafts and enacts copyright legislation. That may change in the future. Earlier this month a new coalition called the Owners’ Rights Initiative was launched to “protect ownership rights in the United States.”

Copyright and other forms of intellectual property are vital assets to people, companies, nations, and to the global economy. Creators of copyrighted works deserve to be protected both by law and through appropriate enforcement. But purchasers of copyrighted works have rights too, provided they acquire those works legitimately and use them in a manner respectful of the intellectual property they contain. Copyright approaches that don’t reflect this balance can hurt us all by reducing the ability to engage with our collective cultural heritage.

Last week, a company called Faulkner Literary Rights filed a copyright infringement claim against Sony Pictures Classics. The issue: One of the characters in the movie Midnight in Paris mentions Faulkner by name and voices a brief (and slightly modified from the original) quote from one of his novels. That, apparently, has set off the alarm bells among the guardians of Faulkner’s literary legacy.

I’m sure that Faulkner himself has written something appropriate to describing this situation. In fact, I even have a good quote in mind. But, I’m not going to write it here. After all, if I do, I might be sued for copyright infringement.

Authors

John Villasenor

Publication: Forbes

Image Source: © Reuters Photographer / Reuters

Preview of New Supreme Court Term

Russell Wheeler — Fri, 28 Sep 2012 00:00:00 -0400

With 40 cases queued up, the U.S. Supreme Court is poised to begin its 2012 term on Monday, October 1. More than half the roster is comprised of criminal justice or federal judicial procedure cases but this session will likely be shaped by a few key cases, including race in the classroom, human rights violations overseas, and voting rights here at home. Visiting Fellow Russell Wheeler previews the session, noting that some of these cases will spark intense scrutiny.

Video

Preview of New Supreme Court Term

Web Chat: Health Care and the States

Wed, 11 Jul 2012 12:30:00 -0400

Event Information

July 11, 2012
12:30 PM - 1:00 PM EDT

Online Only
The Brookings Institution
1775 Massachusetts Ave., NW
Washington, DC

After the Supreme Court's recent decision to uphold Obamacare and the individual mandate, it's time for the states to implement the law. But by striking down provisions that require states to expand Medicaid eligibility, for example, the Court’s ruling raises important questions about the future of health care in America.

How will the Court's decision affect states' implementation of the law? What changes can we expect in massive programs like Medicare and Medicaid? On July 11, Brookings expert Tracy Gordon took your questions and comments in a live web chat moderated by Emily Howell of POLITICO.

12:29 Emily Howell: Welcome everyone, let's get started.

12:30 Tracy Gordon: Hi everyone. Great to be here today. Let's talk Medicaid and state budgets!

12:31 Comment From Gail: How unexpected was the idea that Medicaid provision was deemed "coercion?" In the leadup to the decision, it seemed as though experts expected the Court to rule that the provision, as it was written, merely encouraged states to follow a federal law.

12:34 Tracy Gordon: It was really unexpected! Some court watchers - including my esteemed colleague Henry Aaron - called Medicaid the "sleeper issue" of the case, but a lot of people in my world of state budgets and federalism were very surprised.
The federal government has a long history of conditioning aid on its rules and even the enabling legislation of Medicaid says that Congress reserves the right to "amend, repeal, or alter" any provision.
The court basically said this time was different because Medicaid had growth so large and was such a big part of state budgets.

12:34 Comment From Bryan, DC: It seems completely illogical to me that states would reject the Medicaid expansion, which comes with significant federal help. By doing so, are they just playing politics?

12:35 Tracy Gordon: Some people definitely think so, and bear in mind that declarations now don't mean a whole lot. The law is scheduled to go into effect in 2014 so governors have some time to mull it. As Gov. Christie said here at Brookings on Monday, it will be part of his FY2014 deliberations.

12:36 Comment From John, CA: By choosing to opt out of the medicaid expansion, will states lose money in the long run? As in - is there any validity to the idea that participating in the expansion is "too expensive?"

12:38 Tracy Gordon: The federal government picks up the whole tab in 2014. Then their share gradually declines to 90 percent and the legislation says it remains there after 2020. Some people might remember the Senator Nelson "cornhusker deal" where he tried to get a good deal for Nebraska. In the end, *all states* got the deal basically. It's a very generous subsidy.

12:39 Tracy Gordon: However, the issue from the state perspective is that they have to find that extra 10 percent somewhere. And they are feeling pinched in other areas and they are expected to balance their budgets each year.

12:40 Tracy Gordon: Plus, there is a concern that while the feds are on the hook for people who would be newly eligible for Medicaid (because they are under 138 percent of the federal poverty line) there might be other people who were previously eligible but not enrolled who would "come out of the woodwork" when they saw all the PR etc. States would have to pay for these people and it's not clear if they are high or low cost.

12:41 Comment From Sarah: What benefits will states experience for choosing to participate in the ACA Medicaid expansion?

12:43 Tracy Gordon: A benefit is that their residents who were previously uninsured will have coverage. This will be especially attractive when scheduled cuts to federal payments for uncompensated care go into effect. So some people think that hospitals and other health providers will pressure governors to say yes if uninsured people start showing up for care and that pot of money has dried up, while at the same time there's a new pot of money governors aren't accessing.

12:44 Comment From Jessie in Rockville: Will the initial subsidies offered by the ACA expansion be offered in perpetuity? Are they set to expire at any time?

12:46 Tracy Gordon: This is the big uncertainty for states. As I said above, they are supposed to last in perpetuity after 2020, but there's no guarantee. Then again, the federal government can change the regular matching rate for Medicaid and any other grant program for that matter whenever it wants too. I don't see how it could ever be an iron clad promise.

12:48 Tracy Gordon: By the way, another source of uncertainty is what the feds will do about subsidies to individuals and families so that they can purchase insurance on the exchanges. I don't think anyone really envisioned that the Medicaid expansion would be stripped from the original program so there is some reporting that HHS is now trying to figure out what to do. One line of thought is that they will expand subsidies to get people below the poverty line covered.

12:48 Comment From Guest: Once we start to see states implementing the expansion, can we expect voters in states that rejected the expansion to feel cheated? Do you think there will be political backlash toward the governors that said "no thanks"?

12:50 Tracy Gordon: I think it will be very hard to say no to a free program for the worst off among the uninsured even if it means that the state will be on the hook for 10 percent of the costs later. Then again, a lot of states held out for a long time before expanding their children's health programs in the 1990s and before taking up Medicaid in the first place (Arizona famously waited until 1982 when the Medicaid law passed in 1965).

12:51 Comment From Margaret: Six governors have declared that they won't accept the Medicaid expansion, but as you mentioned earlier these declarations don't mean much now. Which states are most likely not to accept the expansion?

12:51 Comment From Michael MA: Looking at individual states - do you know of any that would particularly benefit from participating in the expansion? Or, more broadly, what characteristics of a state's budget make it an excellent candidate for participating in a way that is beneficial to their budget?

12:54 Tracy Gordon: It's so hard to game it now and figure out what will happen in the future. As a lot of you have said, some of this is politics and some is dollars and cents. The name of the game in state budgets is always variation. I tried to examine in my blog today which states stood to benefit from refusing the expansion based on the proportion of (relatively) high income uninsured in their states. But if the rules change, this calculus could change again.

12:54 Comment From Mark: Wait - you said that it's not clear if people who "come out of the woodwork" would be high or low cost Medicaid recipients? Is this really in question? If someone was eligible for Medicaid under the criteria in place before the expansion but didn't enroll until after the expansion... I thought their benefits would clearly NOT be covered at the higher (90%) federal rate.

12:55 Tracy Gordon: Yes, they clearly would not get the 90% match, but we don't know if they are older and sicker and younger and healthier.

12:55 Comment From User in Vermont: Do you expect, over time, for the expansion to become universally popular? Obviously it's politically divisive among the states now. But do you think that, twenty years down the road, participating in it will be a no brainer?

12:58 Tracy Gordon: Looking twenty years down the road, I see a wave of rising health care costs and aging populations that will clobber both federal and state budgets if we don't get out in front of it. I think that's why it may be in state interests to expand Medicaid rather than having sick people show up in emergency rooms, etc. But in twenty years, we could also be talking about a radically different Medicaid program including block grants to states or the feds taking the most expensive recipients (elderly and disabled) off state hands. Stay tuned for Medicaid to be part of the talk on any "grand bargain" on federal deficit reduction.

12:59 Tracy Gordon: I think that's about all the time we have for now. Thanks so much for the great questions.

12:59 Emily Howell: Thanks for the questions!

Participants

Panelists

Tracy Gordon

Fellow, Economic Studies

States and the Affordable Care Act: An Offer They (Still) Can’t Refuse

Tracy Gordon — Mon, 02 Jul 2012 12:00:00 -0400

For months, astute observers called Medicaid the “sleeper issue” of the Supreme Court’s Affordable Care Act deliberations. Last Thursday, they were proven correct. A majority of the Supreme Court struck down a provision of the law giving the Health and Human Services Secretary authority to pull all federal Medicaid funds from states refusing to extend eligibility to low-income, non-elderly adults.

The ruling was surprising for several reasons. First, starting with land grants for public colleges and universities and continuing through to the interstate highway system and social safety net, the federal government has a long history of conditioning state and local grants on acceptance of its rules. A prime example is federal funding for K-12 education under the No Child Left Behind program.

This is also how Medicaid has operated since its inception in 1965. At the time, Congress explicitly reserved to itself the “right to alter, amend, or repeal any provision.” Indeed, it has exercised this right several times, expanding eligibility to low income pregnant women and various groups of children in the 1980s and 1990s. Some expansions came with carrots (promises of extra money) and some with sticks (threats to existing funds).

But the majority held that this expansion was different, not just tinkering around the edges but fundamentally changing the program’s identity. What’s more, because Medicaid has grown so big (it was states’ single largest budget item in FY 2010, including federal funds) and so much a part of state law, giving the HHS Secretary discretion to yank federal funds amounted to an order, even an existential threat (a “gun to the head” or “your money or your life” proposition).

But the same could be said of the federal tax code, which provides states with various expensive goodies (deductibility of state and local taxes, exemption of muni bond interest from federal income taxes) and whose very existence is a huge subsidy (because states can piggy back off of federal definitions and administration). Numerous budget commissions and task forces have put these subsidies on the chopping block, and at a recent hearing Senator Max Baucus suggested he might do the same. Are these changes now also off the table?

Moreover, in both cases, this symbiosis between states and the federal government developed over time because states said “yes” to federal support. With Medicaid, this relationship was severely tested in the Great Recession, when states had to plug massive budget holes but could not cut Medicaid eligibility because of federal program requirements. Several state Medicaid finance directors openly discussed rejecting federal funds to get out from under these requirements.

However, quitting Medicaid was never a real possibility. States needed the money to take care of individuals who would otherwise go untreated and care that would go uncompensated.

Now, as then, states will take the federal money, especially in light of longer term fiscal strains like rising health care and retirement costs. This won’t be easy. As with any federal grant program, subsidies set out in the Affordable Care Act (100 percent, declining to 90 percent in 2020 and thereafter) are not guaranteed over time.

Another source of uncertainty is what the newly eligible population, and others who come out of the wood work, will look like. Evidence from Arizona suggests some low cost young adults and some higher cost near elderly with chronic health needs.

Some governors and lawmakers have already said their states will decline to participate in the Medicaid expansion. But eight states have already gotten started on extending eligibility through waivers programs and another three are in the queue. Notwithstanding the highest court in the land, the whole Medicaid package is still an offer states can’t refuse.

Authors

Tracy Gordon

Image Source: Jim Young / Reuters

Health Care Ruling Is Less Liberal Than It Looks

Darrell M. West — Fri, 29 Jun 2012 11:19:00 -0400

Democrats celebrated the Supreme Court decision upholding President Obama’s health care law. Commentators focused on the surprising support by Chief Justice John Roberts for the individual mandate and the victory for Democrats.

But beneath the surface, the ruling is less liberal than it looks. Two provisions limit the scope of the law’s impact. First, the Medicaid ruling limits the power of the federal government to encourage states to extend medical care. This gives states the authority to resist national efforts to expand health insurance coverage for the uninsured. With the dire fiscal straits of many states, many places will be unlikely to extend coverage and the result will be fewer uninsured will receive coverage than was expected when the legislation passed.

Second, although Chief Justice Roberts supported the constitutionality of the individual mandate, his opinion limited the ability of the federal government to regulate interstate commerce through tactics other than taxes. This part of the decision will restrict the ability of future Congresses to regulate commerce.

As with many policy decisions, the ultimate assessment of the court’s decision is in the details. Liberals should applaud the overall decision, but fear how the ruling with affect health care implementation. The ultimate result of this decision will be that fewer uninsured will be covered than thought by health care reformers.

Authors

Darrell M. West

Image Source: Jason Reed / Reuters

Supreme Court Decides Affordable Care Act Is Constitutional

Henry J. Aaron — Thu, 28 Jun 2012 00:00:00 -0400

In a landmark decision that will shape the future of the U.S. healthcare system, the Supreme Court ruled to uphold nearly all provisions under the controversial Affordable Care Act. The majority of justices, including Chief Justice John Roberts, declared the law constitutional under Congress’ power to tax. Senior Fellow Henry Aaron explains the Court’s reasoning, the roadblocks still facing the law’s full implementation, and how the decision will impact this year’s heated presidential campaign.

Video

Supreme Court: Affordable Care Act Constitutional Under Congress’ Power to Tax

Authors

Henry J. Aaron

The Supreme Court's Affordable Care Act Decision: An "Act of Judicial Statesmanship"

Jonathan Rauch — Thu, 28 Jun 2012 13:09:00 -0400

Minutes after today's health-care decision comes down from the Supreme Court, a conservative legal scholar I know emails: "Just beginning to read [Chief Justice John] Roberts's opinion, which may be deservedly remembered as a great act of judicial statesmanship." I concur. Roberts and the four concurring justices have managed to be neither a rubber stamp nor a heavy hand. Improbably, they have written a decision that everyone can live with.

There is lots of good legal writing in the various opinions issued today; the Supreme Court is at the top of its game. The big story, though, is that what prevailed was not any particular legal argument but a kind of meta-doctrine about what the court should and shouldn't be in the business of doing. As the majority ruling pointedly notes, the court's first job is to look for ways to uphold democratically enacted statutes, not for ways to knock them down. If it can plausibly construe a law in a way that's constitutional, it usually should.

Of course, "usually" doesn't mean "always." But in this decision the court, and Roberts, avoided the swing-for-the-fences activist temptation which they have succumbed to recently on campaign finance. In the health-care case, Roberts is behaving more like the cautious conservator of the court's institutional role that he promised to be. Let's hope we see more of this chief justice, and less of the guy who wrote Citizens United.

How will it play? Well, I think.

If I'm a liberal Democrat, I'm obviously relieved that the Affordable Care Act (ACA) was upheld. According to the court, the controversial requirement that everyone get health insurance or pay $700 to the IRS is constitutional as an exercise of Congress's taxing power. Which is OK by me, because, whatever Congress may have called the mandate, it looked, walked, and quacked like a tax. Phew.

If I'm a moderate health-care reformer, I'm also relieved. The ACA represented the country's best shot at keeping a private insurance industry alive and making incremental but meaningful reform. Had the ACA gone down in flames, the health-care system might have suffocated on its own dysfunctions before another reform could be passed in, say, 2030.

If I'm a libertarian, I hardly came away empty-handed. By ruling that Congress can't use its commerce power to command people to do things, the court imposed a new limit on the federal government's power, a constraint which is likely to bear fruit in the future. It also placed a new limit on Congress's power to force states to do things. I've got a lot to work with here.

If I'm a partisan Republican, my feelings are mixed. I lost a short-term political blow to President Obama, but now I'll have the mandate--revealed as the tax it is--to rail against. It's a political weapon with years of effective life. Probably a net plus, on balance.

If I'm a left-wing health reformer, I, too, am ambivalent. The ACA props up the private insurance market, which I wish would hurry up and implode so we can replace it with national health insurance. But I'm glad Obama didn't get creamed.

Legally, all of my hypothetical multiple personalities got a clear message from the Supreme Court, and from its recently wayward chief justice, that the court understands its job in a democratically healthy way. Politically, we got an outcome that makes no radical moves and gives everyone something to be thankful for.

"Great judicial statesmanship"? May well be. In any case, a good day for the court and the country.

Authors

Jonathan Rauch

Hail to the Chief (John Roberts, That Is): Thoughts on the Legislative Implications of Today’s Ruling

Sarah A. Binder — Thu, 28 Jun 2012 10:05:00 -0400

Chief Justice John Roberts put it best this morning:

“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”

And so the battle over the future of health care reform goes back to Capitol Hill (as if it ever left). I thought I’d offer a few more thoughts on the legislative implications of today’s decisions.

1. Today’s decision takes the wind out of the sails of conservatives’ constitutional mantra against the Affordable Care Act. Of course, some conservatives will keep leveling this charge against the ACA. As Sen. Rand Paul said this morning, “Just because a couple [of] people on the Supreme Court declare something to be ‘constitutional’ does not make it so.” (Dred Scott would concur.) But in some ways, the Republicans’ precise arguments against the ACA are immaterial: Their legislative efforts to repeal and/or replace the Act will go forward with or without the constitutional window-dressing.

2. Expect to see continued GOP efforts to defund the law's benefits and programs. Republican efforts to defund health care reform, however, are not quite as straightforward as they may seem. First, much of the funding for implementing the Act was actually appropriated in the Act itself (or provided for via transfers from other programs). CRS helpfully spells out the roughly $100 billion in spending included within the Act here. Only some of the portions of the Act were to be funded through future “discretionary” appropriations, as detailed here. So GOP efforts have to be tailored to the narrow range of authorized—but not yet funded—ACA programs. The alternative route— which the House GOP has been following for the fiscal year 2013 spending bills now in play—is to aim cuts at the operating budgets of the bureaucracies that will implement the law (namely, HHS and the IRS). By preventing bureaucrats from hiring or paying employees (and maintaining their computers and buying them pencils), Republicans could in essence do an end run around the ACA’s already appropriated funds. (What happens to those appropriated funds if HHS can’t hire employees to spend them? Good question.)

3. Expect Senate Democrats to keep blocking House GOP efforts to defund health care. That of course is already happening, as the Senate Appropriations Committee has batted back Senate Republican efforts to defund the ACA through the IRS and HHS budgets. The Hill details some recent squabbles here.

4. To state the obvious, the outcome of these legislative battles will be affected by the outcome of the November elections. Indeed, if spending for fiscal year 2013 (which begins October 1, 2012) drags out past the election and past the lame duck session, it’s hard to predict how successful the current defunding efforts will be. Certainly a Democratic Senate and a re-elected Obama would continue to resist efforts to defund the law.

5. More generally, to do real damage to the future of health care reform, Republicans need to hold the House, and win the White House and (presumably) with it, the Senate. Even then, however, they will find it hard to repeal and replace, assuming that Senate Democrats exploit an effective filibuster against any such effort to deny the GOP the sixty votes they would need to succeed via the regular legislative process. My hunch is that today’s decision will be critical in bolstering Senate Democrats’ back bone to defend the law, even if they were to find themselves in the minority. Because most of the law’s popular insurance coverage protections kick in only in 2014, the window of opportunity for the GOP will be widest in 2013. After 2013, the GOP’s road to repeal would get even steeper.

6. Finally, reconciliation. I think the bottom line is that repeal and replace through reconciliation will be harder than Romney and the GOP let on, but not impossible. The devil is of course in the details. If a Republican Congress can pass a budget resolution that includes reconciliation instructions to committees, then reconciliation under a GOP president provides a potential majority-vote path to overturning portions of the health care law. The path is “potential” because the bill’s provisions would have to avoid or survive “Byrd Rule” challenges in the Senate. In short, the Byrd Rule prevents provisions that are “extraneous” to budget targets from being included in reconciliation—unless proponents can muster sixty votes to waive a Byrd Rule challenge or to reject a point of order under the rule. “Extraneous” generally refers to provisions that do not produce a change in spending or revenues, but there are actually six definitions of “extraneous” in the Budget Act—including one that prevents inclusion of measures that would increase the deficit for a fiscal year beyond those covered by the reconciliation bill. (For an overview of the limitations of reconciliation’s majoritarian features, I would read Bill Heniff’s excellent piece.) Assuming that a Republican Senate would have far fewer than sixty votes, whether or not particular elements of a GOP reconciliation bill would be able to survive Byrd Rule challenges would depend ultimately on the parliamentarian’s interpretations of the rule and the potentially offending provisions. We know that CBO scored the entire ACA as saving over $200 billion, but how particular provisions of a GOP bill would be scored remains of course to be seen. And not all of the ACA provisions of course have fiscal effects. That’s why—as always—the devil is in the details.

Authors

Sarah A. Binder

Publication: The Monkey Cage

Image Source: Jonathan Ernst / Reuters

How Far Did Roberts Really Stray in the Supreme Court Decision on the Affordable Care Act?

Benjamin Wittes — Thu, 28 Jun 2012 15:55:00 -0400

It was always easier to count to five for an opinion upholding the Affordable Care Act than for one striking it down. In order to strike it down, all five of the high court’s conservatives would have to be rock-solid, they would have to stand together on everything. If one of them decided that the individual mandate constituted a tax for purposes of the Anti-Injunction Act, the mandate would stand for now. If one decided that the individual mandate represented a valid exercise of the Commerce power, the mandate would stand. And if one decided that the individual mandate represented a valid exercise of the power to levy taxes, it would stand. Only if all five agreed on all of the major points would the law fall.

Truth be told, the conservative bloc did remarkably well—much better than most observers predicted at the outset of the litigation (though not quite as well as many of those same observers predicted after oral argument). They held together on jurisdiction, and they held together on the Commerce Clause. And only one broke ranks on whether the mandate could reasonably be seen as a tax and whether the Medicaid mandates on the states must fall.

That was enough, and the result is a huge victory for the administration. But it’s a win that liberals can relish only in the very narrow sense that a specific legislative legacy of the Obama administration has survived. In a broader sense, this case represents a significant Commerce Clause precedent limiting congressional power. It is an irony for liberalism that nobody will ever cite the majority opinion in NFIB v. Sibelius for a vision of the Commerce power expansive enough to reach the mandate the decision upholds. They will cite it, rather, for the opposite proposition—that the Commerce power is limited and that Congress has to think hard about the limits of its authority when it enacts a program like this one.

The conservative who broke ranks was not the one who most people expected to bolt. Observers assumed that Justice Anthony Kennedy was the soft vote, or perhaps that he and Chief Justice John Roberts would both side with the liberals to uphold the mandate. Very few predicted that Roberts alone, without Kennedy, would provide the crucial fifth vote. Roberts is now, predictably enough, receiving the plaudits of the Left (“This could be a huge day in the evolution of Chief Justice Roberts as a great chief justice,” Laurence Tribe told the New York Times) and the derision of the Right (“Chief Justice Roberts’s Folly,” screams the National Review editorial headline).

I would hold the reevaluations.

I tended to resist the sudden liberal revulsion at Roberts in the wake of Citizens United, and I would caution against any sudden embrace of him by liberals--or excommunication by conservatives--now. We will see, I am sure, endless speculation about his motives--whether he’s thinking about his legacy, about his not wanting to replicate the folly of the New Deal court. I have known Roberts for more than decade, and I don’t pretend to know his motives or to have deep insight into some secret psychology that explains his votes. I mistrust people who think they have developed some unified field theory of the politics or psychology of the court more generally. I have a sneaking suspicion that the explanation for Roberts’s opinion and vote in this case is a disarmingly simple one: He thinks the mandate, while not defensible under the Commerce Clause, is defensible as a tax and he’s not looking for 5-to-4 decisions invalidating acts of Congress along ideological lines where laws can reasonably be reconciled with constitutional authorities to enact them. Roberts is, to be sure, no shrinking violet about ideologically divided opinions when, in his view, the law compels them, but he apparently has a more flexible view than do his conservative colleagues concerning the difference for constitutional purposes between a penalty and a tax.

In other words, don’t be too surprised if Roberts next terms looks like a conservative again. He actually did not stray very far from where the other four conservatives ended up in this case—just over a consequential line.

Authors

Benjamin Wittes

Image Source: Larry Downing / Reuters

The Supreme Court's Stunning Decision on the Affordable Care Act

William A. Galston — Thu, 28 Jun 2012 11:21:00 -0400

In a stunning decision that will define his legacy as chief justice, John Roberts broke with the Supreme Court’s conservative bloc and provided the fifth vote to uphold the constitutionality of the Affordable Care Act. While declining to uphold the Act under the Commerce Clause, Roberts argued that the mandate could pass constitutional muster as an exercise of Congress’s power to tax. In so doing, he refrained from providing a precedent for what many conservatives regard as an unprecedented expansion of an already expanded New Deal Commerce Clause about which they have grave reservations.

One can only speculate about Roberts’ motives for proceeding as he did. It is certainly possible that, like Chief Justice Charles Evans Hughes in the mid-1930s, he had one eye focused on jurisprudence and another on the standing of the institution he heads. This may be another “switch in time” that saved the Court from becoming embroiled in a full-fledged confrontation with the executive and legislative branches.

What is beyond speculation is that this comes as a massive disappointment to movement conservatives who have spent decades strengthening their position in the judicial branch with the ultimate objective of halting and reversing the growing reach of the federal government. Expect recriminations and accusations alleging that, once again, a pivotal conservative has yielded to liberal elite opinion.

If conservatives are to realize their hopes of repealing the Affordable Care Act, the electoral process is their only remaining recourse. Once the dust settles, expect them to mobilize and work even harder for unified government under Republican control. And expect Mitt Romney to wave the bloody shirt all the more vigorously.

Authors

William A. Galston

Publication: The New Republic

Image Source: Yuri Gripas / Reuters