This is a complicated issue, but I think Jon has it exactly right when he says that there is a silver lining to the Court's affirmative action decision. I'd go so far as to say that as a matter of separation of powers theory (as opposed to more traditional, and less theoretical, doctrinal decisionmaking) the Court got it exactly right. We're better off, in my view, letting the political process work out these emotional public policy issues than we are having the Court take them off the table. I want to think and write about this some more, but, that general belief is why my inital reaction is that the Court was absolutely right in Grutter v. Bollinger, and was absolutely wrong in Lawrence v. Texas, even though, as a policy matter, I think sodomy laws are horrendous, and affirmative action is of questionable value.

Its this area of constitutional decision making - where the Court decides that no one can regulate a subject - that makes me uncomfortable. The Court's federalism decisions, on the other hand, though important, are much less troubling. Those decisions only say who can regulate an issue. They don't keep the people from governing themselves.

How's that for a fat target for you guys?
- posted by Tom Sawyer @ 5:54 PM