For almost a week now progressive politicians and media have been attacking  Supreme Court Justice Anton Scalia for peddling racism. The charge is based on comments Scalia made last Wednesday during arguments in the affirmative action case of Fisher v. the University of Texas. But based on the pre-trial briefs and the tradition of Justices playing “devil’s advocate,” Justice Scalia said nothing wrong and the progressives are over-reacting by a mile.

The case has been brewing for seven years. plaintiffs Abigail Noel Fisher and Rachel Multer Michalewicz applied to the University of Texas at Austin in 2008 and were denied admission. The two women, both white, filed suit alleging that the university had discriminated against them on the basis of their race in violation of the Equal Protection Clause of the Fourteenth Amendment.

In addressing one of the lawyers for the University of Texas, Justice Scalia said in his usual blunt style:

“There are those who contend that it does not benefit African­ Americans to ­­ to get them into the University of Texas where they do not do well, as opposed to having them go to a less-­advanced school, a slower-­track school where they do well,” as opposed to Texas’ flagship campus in Austin. There, he said, some are “being pushed ahead in classes that are too fast for them.” Scalia went on to add that one brief submitted in the case had said that “most of the black scientists in this country don’t come from schools like the University of Texas….They come from lesser schools where they do not feel that they’re that they’re being pushed ahead­­ in classes that are too ­­ too fast for them.”

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Scalia wasn’t making this up, it comes from something called “mismatch” theory, advocated by former journalist Stuart Taylor and UCLA professor Richard Sander. The theory was part of the evidence in the case as Taylor submitted a friend of the court brief about the theory for the Justices to read. Obviously Scalia did his homework.

Mismatch theory suggests that affirmative action can actually work against the students it’s supposed to benefit. The practice of affirmative action may place some students in colleges where their skills fall below the average level of ability. Those students may end up struggling academically, which harms them in the long-term.

But, the fact that it was part of the evidence submitted to the court didn’t sway progressives like Senator Reid, who didn’t know or didn’t care about “mismatch” theory and its involvement in the case. He just saw an opportunity to criticize a conservative judge.

On Thursday he read Scalia’s comments on the Senate floor, then ripped into the justice for being racist. As reported by CNN, the senator’s rhetoric included:

“These ideas that he pronounced yesterday are racist in application, if not intent,” Reid said. “I don’t know about his intent, but it is deeply disturbing to hear a Supreme Court justice endorse racist ideas from the bench on the nation’s highest court. His endorsement of racist theories has frightening ramifications, not the least of which is to undermine the academic achievements of Americans, African-Americans especially.”

Looking to score two political point with one oration, Reid brought Donald Trump into his speech so he could blame all Republicans.

“As we speak, Donald Trump is proposing to ban Muslim immigration. Other leading candidates are proposing a religious test, tossing around slurs on a daily basis,” Reid said. “And now a Republican-appointed justice endorsing racist ideas from the Supreme Court bench. The only difference between the ideas endorsed by Trump and Scalia is that Scalia has a robe and a lifetime appointment. Ideas like this don’t belong on the Internet, let alone the mouths of national figures.”

(…)”The idea that African-American students are somehow inherently intellectually inferior to other students is despicable,” Reid said. “It’s a throwback of time to a time that America left behind half a century ago. The idea we should be pushing well-qualified African-Americans out of the top universities into lesser schools is unacceptable.”

Harry Reid’s comments were echoed in progressive circles all weekend. Even Donald Trump slammed the justice:

“I thought it was very tough to the African-American community, actually,” Trump told CNN’s Jake Tapper in an interview that aired Sunday on “State of the Union.”


“I don’t like what he said,” Trump added. “No, I don’t like what he said. I heard him, I was like, ‘Let me read it again’ because I actually saw it in print, and I’m going — I read a lot of stuff — and I’m going, ‘Whoa!’

Was this Trump trying to endear himself to the African-American community or was it Trump making comments before understanding the full picture? Because none of Scalia’s comments said that African-American students were inferior. He said that – sometimes – affirmative action can send students to schools for which they are unqualified, a practice which hurts those students.  And that observation was based on a friend of the court brief that neither Harry Reid, his progressive minions, nor Donald Trump read before bothering to comment.