FUDGING THE ISSUE
Admission to a prestige institution like the University of Michigan or its law school is what computer types call a “binary” decision. It’s yes or no. You’re in, or you’re out. There is no partial or halfway admission. The effect of any factor in that decision is also binary. It either changes the result or it doesn’t. It makes all the difference, or it makes none at all. Those are the only possibilities.
For any individual, the process of turning factors into that yes-or-no decision doesn’t matter. Any factor that changes the result has the same impact as if it were an absolute quota of one. It gets you in, or it keeps you out. And this is either right or it is wrong. The process of turning factors into a result doesn’t matter here, either. In this sense, the moral question is binary, too.
The majority opinion says that its preferred flexible-flier style of affirmative action does “not unduly harm members of any racial group.” Well, this depends on what you mean by “unduly,” doesn’t it? As noted, we’re dealing with an all-or-nothing-at-all decision here. Every time affirmative action changes the result, a minority beneficiary benefits by 100 percent and a white person is burdened 100 percent, in the only currency on issue, which is admission to the University of Michigan. This burden may be reasonable or unreasonable, but it is precisely the same size as the burden imposed by the mathematical-formula-style affirmative action that the court finds objectionable.
One can make a reasonable argument either way as to whether giving preferential treatments to certain groups is worth imposing a burden on other groups. But at least acknowledge the rather obvious fact that this is what is happening. Kinsley does this routinely, which I why I enjoy reading his analyses. I disagree with his policy preferences most of the time but at least he makes his arguments honestly.