Autumn vibes mailbag

Gender-based affirmative action, nuclear threats, and judicial review

Hey folks, just a little programming note. It’s been fun doing these mailbag columns, so much fun that Milan asked if he could try his hand at one. So next Friday, I’m gonna take a week off and he’s going to do the answering. Start thinking of some material for him over the weekend!

For now, though, you’re stuck with me.

Marie Kennedy: Do you use the gender of the question-asker (or judgment thereof based on handle and context clues) as a factor in choosing which questions to answer or what order to publish them in? Despite being outnumbered 10:1 in the comments section, seems like lady-questions get the number one slot half the time, and make up about half of the first 6 questions or so.

Yes.

[Editor’s note: When we solicited feedback from women who read the newsletter, one of the most common remarks was that it would be nice to see more visibility from other women in the comments section and in the mailbag. While we like to think that all of our posts are worth reading from start to finish, we know in practice that doesn’t always happen, so we have both been more mindful in our question selection and also tried to put questions from women closer to the top where they’re more likely to be read. We also, of course, realize that guessing someone’s gender based on their handle is an imperfect method, but that’s the information we have available to us.]

JM: One underdiscussed aspect of affirmative action is the preference given to males, particularly at liberal arts schools where - if this preference didn’t exist - women would outnumber men 60:40 (or more). What do you make of both the phenomenon itself - Richard Reeves has a new book out on this - and its lack of overlap with the general affirmative action debate?

I think this is a good illustration of the reality that admissions practices are made by schools for their own benefit and not in pursuit of some larger social goal. To the extent that schools put a thumb on the scales — whether in the form of admissions or who gets offered sweetheart merit scholarships — to boost male enrollment, they are not doing that to correct structural bias against men.

They are doing it because they want students to have a fun time in school. The more fun your students have, the more likely alumni are to donate. The more fun your students have, the more new applicants you’ll get, which lets you be more selective. It’s not super high-minded for a college president to come out and say “one of the ingredients to a successful college is an enjoyable dating scene, so we skew admissions to help our students find boyfriends.” But that’s what’s going on.

But if you zoom out to a society-wide level, we clearly do have a structural imbalance where women are now significantly more likely than men to get college degrees, and also women don’t like to date or marry men who are less educated than they are. That doesn’t sound to me like a recipe for everyone to have a happy, fulfilling life, but it’s also not super clear what you might do about it.

What’s important, I think, is to remember the core insight — schools make admissions policies for self-interested reasons, not for social justice reasons — and to apply that to racial affirmative action. There’s no evidence that diversity admissions policies are increasing the total number of Black and Hispanic college graduates, because of course most schools aren’t selective at all. And while Harvard bolsters its own social legitimacy by recruiting an appropriately diverse class, that simply creates a new diversity problem for the marginally less selective schools that Harvard’s diverse admitted students (which, to be clear, includes plenty of people like me rather than genuine hard luck cases) would otherwise attend. The main benefit of affirmative action to the students is that they get to attend schools with more financial resources. But this is a policy choice. Since California ended affirmative action, the state has somewhat reformed its higher ed funding system to be less tilted in favor of the UC schools and more favorable to Cal State and community colleges. That seems correct and appropriate to me. But it’s indispensably bad for the University of California, which took a hit to its social and political legitimacy that has now disadvantaged it in battles with Cal State.

If (realistically, when) the Supreme Court strikes down affirmative action admissions, that will be a real blow to Harvard, Yale, Stanford, and a handful of other top-tier universities. But the consequences for society depend largely on which institutions people choose to support financially — and I think moving money down the prestige hierarchy would be a great idea.

Lost Future: How do you feel philosophically about judicial review being part of a country's political system? I remember when I learned in school that a majority of developed countries actually don't have true judicial review, they practice 'parliamentary sovereignty' and the legislature can just pass whatever they want.... Was pretty shocking. But, most of those countries are in the EU, so aren't they now all subject to the EU Court of Human Rights? So maybe that's no longer true, I dunno.

If you were creating a new constitutional order from scratch, would you empower a supreme judiciary to strike down 'unconstitutional' laws? Or is that too subjective & inherently partisan? I think we've all heard criticisms that the justices are just unelected politicians, etc. etc. One reasonable compromise (for the US) that I was thinking is that it should require a supermajority to declare a law unconstitutional- using a raw majority to determine what should be a fundamental question is pretty dumb. Also, individual judges should have a lot less power in our system. Open to hearing your thoughts though!

It’s important to distinguish between two separate ideas. One is judicial review of laws to assess their conformity with the constitution. The other is the idea that the courts should be the people who “go last” in an interbranch conflict.

I think the Canadian system — in which laws are absolutely reviewed by the judiciary for conformity with the Charter of Rights and Freedoms, but Parliament has the right to overrule the Supreme Court — is good. Overrides do happen under this system, but relatively rarely — the Court’s rulings are not a dead letter. One reason they are not a dead letter is that the Court has a decent amount of legitimacy. But one reason they preserve that legitimacy is the Supreme Court is not a locus of massive partisan conflict. And that’s because strong policy-demanders at odds with an important constitutional ruling have a more promising course of action than politicizing the judiciary — they can just push for parliamentary override. To me, it’s a good system.

But note that in the United States, a lot of the de facto power of the judiciary comes from non-constitutional cases. Because of bicameralism, presidentialism, and the filibuster, the stakes in judicial interpretation of statutes are very high here. If the Supreme Court of Canada rules that some Canadian air pollution regulation violates the law and Parliament feels they don’t like the outcome, they can just pass a new law that clarifies the point. In America, if the Supreme Court rules that the EPA can’t regulate greenhouse gas emissions, then that is a de facto guarantee that there will be no emissions regulation because the barrier to passing a new law is so high in our country.

This is why on some level, I think “judicial review” is the wrong thing to ask questions about. Obviously courts need to be able to do statutory interpretation. But what we have in the United States is an extremely low-productivity legislature that in practice devolves massive amounts of power to the courts.

James L: What do you think about the provision of tanks, advanced anti-aircraft systems (e.g., SAMs), fighter aircraft, and substantially more artillery to Ukraine? Should Europe or the US be ramping up its deliveries? Also, what financial help should Europe and the US be providing to Ukraine?