Harvard and the Supreme Court

The Supreme Court is hearing arguments this week for Students for Fair Admissions Inc. v. President & Fellows of Harvard College, and a similar case against North Carolina State. The issues are (1) whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.

It is not the job of the court to determine if affirmative action is desirable, though there is robust public debate on that issue. Nor is it the court’s job to determine if affirmative action is effective, though again there is much public debate about that. The courts only job is to determine if it is legal in the context of the constitution and current federal law.  

Here is the exact text of Title IX:

 “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

It seems pretty clear to me from that wording that using race, color or national origin in any way in determining admission to Harvard violates Title IX, and the court may well see it that way.  If so, some will claim that was an ideological or political decision. I would not presume to claim to know the personal motives of the justices, nor should others be so arrogant. The eventual judgment should be evaluated on the legal arguments in the written decision. The question is simply what the law says, in black and white. If it is defective, it is the explicit job of the legislative branch to remedy that. It is explicitly NOT the job of the courts to do Congress’s job.

I would note that Harvard is perfectly free to use race as a criterion in admissions if it is willing to forgo federal funds. With an endowment of $53 BILLION, Harvard could well afford to forgo federal funds, and in fact even give every student free tuition.

I would also note that the very groups that object to Title IX being used to invalidate the use of race in admission decisions are the very groups that fought for Title IX in the first place, It‘s just that they want it applied only to African Americans, but not to Asian Americans. Of course, in today’s highly politicized environment, whichever way the court rules the media reaction will be hysterical, and probably highly unfair to the justices.

Recommended: The End of the World is Just the Beginning

Between covid, inflation and the war in the Ukraine the world has changed a great deal in the past few years, but these changes are nothing compared to what is coming. If you want to understand what is coming, and why, Peter Zeihan’s latest book, The End of the World is Just the Beginning,  explains it in exhausting detail. Doom and gloom books are popular in America (peak oil, Y2K, Japan buying up everything, etc), but most have proved to be wrong, based on a misreading of short-term trends. Zeihan works with much more basic stuff – geography, demographics, trade flows, supply chains, etc. There isn’t any disagreement that birth rates worldwide have fallen precipitously, There isn’t any argument about the geography of Europe, or which nations hate which other nations. There isn’t any confusion about what raw materials are needed to make steel, or fertilizer, or microchips, or where these materials can be found around the world.. And these are the basic things on which Zeihan bases his assessments.

At just under 500 pages, this is not a book one reads in an afternoon. Zeihan wanders through history, geography, material science, demographics, and dozens of other fields, tying them together to show how we got to where we are, and where we are going, all in his jocular style, which makes this book quite readable despite the enormous amount of material to be absorbed.

 

Recommended: How the World Really Works

Vaclav Smil. Distinguished Professor Emeritus in the Faculty of Environment at the University of Manitoba in Winnipeg, Canada, is author of over 40 outstanding books on energy and on the environment. His latest book, How the World Really Works: The Science Behind How We Got Here and Where We’re Going (2021), is typical of his work – lots of common sense and good historical and technical background supported by hard data. Smil points out that to most people most of what supports their daily lives are mysterious black boxes. Vegetables and meats appear in their markets, but most people have a very dim idea of how they got there. Throwing a switch turns on the lights, but most people have little understanding of the technology or the economics behind the electricity that powers that light.

Smil attempts in this book to remedy that, and in the process to bring some reality to the naïve claims of those who think we can abandon fossil fuels in a decade or two. In fact our world floats on fossil fuels – every tomato grown and delivered to the table has consumed about three tablespoons of fossil fuel in fertilizer, transport, and equipment, and a kilogram of chicken on the plate required about half a wine bottle of fossil fuel to get it there. Eliminate fossil fuel and a majority of the world starves to death.

 

Status of the Russian-Ukrainian war

It is very difficult to tell what is really happening in the Ukraine war, but gathering reports from various sources suggests the following:

Russia is still suffering heavy casualties, (they lost two more generals last week, for example) but despite that is making slow progress in the Donbas region. Russian doctrine is to saturate an area with artillery in preparation for moving troops forward to take ground. It appears they are doing fine with the artillery barrage portion, but often lack sufficient ground troops to exploit the openings their artillery may have produced.

The Ukraine, while yielding ground very slowly, is suffering heavy casualties, apparently on the order of 100-200 killed and 300-500 wounded EACH DAY. This is not a rate they can sustain for very long. In addition, they report that they are running out of ammunition. Part of the problem is that the West has been buying up all the old Soviet ammunition lying around in Eastern Europe NATO nations and shipping it to the Ukraine because it fits their Russian-vintage weapons. But that supply is apparently pretty much exhausted. So going forward the Ukraine depends on NATO ammunition, but that requires NATO weapons to fit it. (Russian artillery, for example, mostly uses 152mm shells, while NATO howitzers use 155mm shells.)

So a necessary, if not sufficient, condition for the Ukraine to continue to oppose Russia is a massive effort to not only supply the Ukraine with Western weapons and ammunition, but to retrain them to use these weapons effectively and to maintain them. My impression, from comments posted by Ukrainian soldiers, is that this is going on, but at a pitifully slow pace. There are reports they are even having to use Goggle translate to translate the maintenance manuals, because we have delivered them only in English.

In fact, measured against normal bureaucratic speed, the US has moved weapons to the Ukraine at an impressive rate. But not at the speed that a modern war requires. We seem to always be a couple of months behind where we should be, with the result that advanced NATO weapons are just beginning to appear here and there on the battlefield, when they were really required at least a month or two ago.

Reports are that Russia is fortifying its lines in the Donbas, sometimes establishing two or three layers of fortifications, preparing to make it much harder for the Ukraine to take back what it has lost. In fact Ukrainian troops have had very limited success in taking back ground they have lost. They took back all the ground near Kyiv not because they counterattacked, but really because the Russians withdrew.

So it seems to me the likeliest prospect is for the war to settle into a protracted battle of attrition, with the Russians holding what they currently control, but not advancing much further. This will be unacceptable to the Ukraine, but there may not be much they can do about it.  From NATO’s point of view, the most important thing is to sap the Russian military enough to deter Putin from attacking a NATO member and forcing us into a full NATO-Russia confrontation.

Meanwhile, the sanctions on Russia are slowly beginning to bite. It hasn’t been too bad for them yet, but soon western-built machines, from oil wells to airplanes to McDonald deep fryers to trucks, will begin to need maintenance expertise and spare parts which will not be available. I expect a fairly gradual crumbling of much of their commerce, but it may take years. Of course sanctions are notoriously leaky, so they will manage to get some sanctioned parts from smuggling, and they will manage to sell some portion of their oil and gas through “black” channels, as both Iran and Venezuela have managed to do despite US sanctions.

From the point of US policy, it seems to me what we need to decide is just how we will handle a de facto divided Ukraine. Can we keep the western coalition against Russia together? Can we convince some of the nations not now participating in the sanctions, like India, to join us, and what incentives have we to encourage that? How vigorously will we support a continuing low-level war in the Ukraine? If the Ukraine is divided, will we undertake to rebuild the free portion?

And perhaps of most importance, will US domestic politics from the midterms on divert us from giving this problem the attention it needs? Russia is a dying empire, but it remains dangerous in its death throes, especially with Putin’s messianic dreams.

Re Roe vs Wade

Let me make it clear right from the start that I think women ought to have the right to control their own reproductive activities. Abortion should be legal and accessible to every woman, but good family planning and contraception should also be available to reduce the need for abortions in the first place. If men could get pregnant this wouldn’t even be an issue.  

Having said that, let me comment on the leaked draft opinion by Justice Alito. His legal and historical reasoning is in my opinion flawed in many places, but his core claim is correct. Roe vs Wade was a bad ruling, as even Justice Ginsberg, a passionate liberal and defender of women’s rights, argued. Just as this court appears to be about to rule to overturn Roe on conservative ideological grounds, Roe itself was upheld in 1973 on liberal ideological grounds – they wanted to have this outcome - with a very tenuous legal underpinning.

The 1973 court first “found” a right to privacy in the Constitution, even though there is no such concept anywhere in the document, nor any record of any discussion about it among the writers of the Constitution. The court’s argument was that it was “implied” somehow, even though it wasn’t directly addressed. A pretty thin argument.

And then from that newly found “right to privacy” they made another very loooong stretch to make it cover abortions. So the whole ruling is based on two very tenuous and thin arguments. And as several justices have said, this is not an issue that ought to be decided either way by nine unelected justices; it ought to be decided by elected legislatures. By rights Congress ought to make abortion legal nationwide by legislation, but of course that won’t happen with this Congress, or any Congress in the near future, and it is worth exploring why that is.

First of all, opposition to abortion is for most people based on a religious belief, not anything to do with the real biology involved. There is no point at which “life begins”.  Life is a continuing process, and if at any point in the process there is no life – if the egg or sperm die – then there is no baby. Those of us around today are all here because life never “ended” anywhere, even for a moment, between our single-celled most distant ancestor some 3.5 billion years ago and us now.  So definitions of when life “begins” or “a soul enters the body” are arbitrary religious concepts invented mostly by medieval monks and clergy who had no understanding of modern biology. Nonetheless, for believers these are persuasive authorities who have shaped their own views.

But in fact a majority of the nation, including both believers and nonbelievers, seems to believe abortions ought to be legal, at least up through the second trimester. So why do we have politicians appointing anti-abortion Justices, or at the state level outlawing abortions in so many states? It is worth exploring that.

I would argue the problem is in part rooted back in the primary system of picking candidates. Yes, the old smoke-filled room method of picking candidates by a few powerful political kingmakers had its faults and was subject to abuse. But they did tend to pick electable center-of-the-road candidates. When reformers got rid of the smoke-filled rooms and replaced it with primary elections, that seemed at first like progress. But remember the old saying: “the road the hell is paved with good intentions”.

In fact, whatever was intended, the current primary system tends to favor extremist on both sides. Why? Primary elections are generally low-turnout affairs; after all, they aren’t the ”real” election, so many people don’t feel much motivation to turn out. Who does turn out? Those who are passionate about an issue, and those tend to be the extremists on the left and right. So in fact all too often the candidates are chosen in the first place by the more extreme elements among the voters, so we tend to get elected representatives who have more extreme views than the voting population as a whole. And that is certainly the case for this issue.

And of course this whole issue is just one of many boiling right now, as our two political parties have both become dysfunctional, though in different ways.  As Peter Zeihan has been telling us for years now, we are entering a many-decades-long period of global unrest and cultural realignment that will feature many divisive issues like this.

The Ukrainian "first phase"

The Russian generals have declared the “first phase” of the Ukrainian invasion over, and now say they will focus on “liberating” the rest of the Donbas region, which they claim was their original intentional all along. So what does this really mean?

Well, certainly they are lying about their “original intentions”. Putin made a number of statements early on that made clear he intended to take over the entirety of the Ukraine and install a government favorable to Moscow. So this “first phase” talk is just a face-saving admission that the Russian military failed (miserably!) to achieve its goals of reaching Kyiv quickly and replacing Zelinsky and his government. 

But it does suggest that Putin has finally come to terms with his failures (or, as he no doubt sees it, the failures of his general officers and his intelligence agencies). This certainly doesn’t suggest he has had a change of heart. I assume he will pursue ruthlessly whatever goals he thinks he can still achieve in the Ukraine, and then spin their attainment as a “success”. So what might these be?

Probably it is true that he would like to take the rest of the Donetsk and Luhansk regions. His “little green men” held about a third of those regions before the invasion began, as the map below shows.

And if in the process his military could surround and capture the majority of the Ukrainian forces concentrated in those regions, that would be a bonus. The Ukrainians will have to make a strategic decision about that – hold fast and risk being surrounded, or withdraw and trade territory for a better tactical position.

There is as yet no indication that the Russians are withdrawing forces from around Kyiv or in the south to move them to the Donetsk and Luhansk regions, so I assume they will just dig in and stay where they are to be a bargaining chip in later negotiations, or perhaps because Putin or his generals think that they may be in a position later to resume the advances in those regions.

So I assume Putin thinks his military can probably take more territory in the Donetsk and Luhansk regions, keep the territory he has gained in the south, cutting off much of Ukraine’s access to the Black Sea and giving him a land corridor to the Crimea, and continue to pin down Ukrainian forces guarding Kyiv. And meanwhile Russia can continue to shell and bomb cities and generally try to terrorize the population.

There really isn’t much the Russian military can do right now to improve its performance. About a third of its combat forces in the Ukraine are apparently poorly-trained 1-year conscripts (despite Putin’s assertion that there are no conscripts there), and they are getting their training the hard and deadly way. Russian has, according to most experts, already committed over half its available combat forces to the Ukraine, and to commit much more would leave other areas of Russia vulnerable. Ignore the propaganda about Russia having millions in reserve; they are mostly untrained and unequipped. The Russian NCOs (non-commissioned officers) are notoriously corrupt and poorly trained, which means the troops are poorly led, and that can’t be fixed in a hurry. Russian doctrine depends heavily on armored assaults, and there is no easy and quick way to remedy how vulnerable armor is proving to be these days to portable American Javalin and British NLAW anti-tank weapons. And finally the Russian system depends heavily on top-down commend; lower level troops have no authority or experience acting independently or taking initiative, and there is no quick way to remedy that either.

If the negotiations with the Russians get serious, I expect the Ukrainians could be persuaded to give up their claim to the Crimea, which after all was part of Russia until Premiere Khrushchev arbitrarily transferred it to the Ukraine in 1954, and which isn’t particularly important to the Ukrainian economy. But I doubt they would agree to give up the Donetsk and Luhansk regions, and I would guess that Putin would not be willing to relinquish his goal of carving at least that much of the Ukraine off. So I don’t hold out much hope for a negotiated settlement soon, though that might come eventually.

What should the West do?  Well certainly we ought to continue to feed the Ukrainians weapons and ammunition, and let them bleed the Russian army as much as possible. We have done well by equipping them to neutralize the Russian armored forces. We ought also to better help them deal with the remaining primary threat they face by equipping them to better take out the long-range artillery and the air power that is shattering their cities.

And certainly we ought to tighten the sanctions and strangle the Russian economy as much as possible, all in the long-term interests of weakening Russia enough to dissuade Putin from moving on to attack a NATO country and forcing us into an all-out Russia vs the West war. Personally I think the West has been a bit too timid in opposing Putin; a bit too scared of “escalation”. It ought to be Putin who is afraid of the West escalating, since in fact Russia is by far the weaker party on all measures.

That doesn’t mean I think we ought to put US or NATO troops into the Ukraine, though if Putin resorted to more drastic measure, like chemical or biological or nuclear weapons, that might change. But I do think we could provide the Ukrainians with more and better weapons, and I do think the West ought to bite the bullet and cut off all gas and oil purchases from Russia, even though it would produce massive dislocation and economic problems in Europe. And America ought to step up to do much more to help the Europeans deal with that dislocation, even if it produces severe economic pain in the US.  Politics being what it is, I doubt we will do that, but perhaps I will be pleasantly surprised – who knows?

The Biden administration has done better than I would have expected thus far, and that is promising. But I think we are all thinking much too small, and are just reacting to events day-by day instead of proceeding with a rational long-range plan. Europe needs to get off of its addiction to Russian oil and gas. That will be hard, given the way they have built their economy, and requires thinking on a much larger scale.  We need a sort of "Marshall Plan" scale of thinking to help Europe though the transition.

And of course the elephant in the room is China, who is no doubt watching our reactions closely, and calibrating its future moves on that basis. A weak response to this crisis may bring serious problems for us later.