COUNTDOWN TO THE HARVARD/UNC ORAL ARGUMENT:  My fun-loving sister asked me if I planned to have a good time on the 31st.  I thought, “Yes!”  But then I realized she was talking about Halloween and not the Supreme Court oral arguments in Students For Fair Admissions v. Harvard College and Students For Fair Admissions v. UNC.

(FYI:  The Heriot sisters break down this way:  She is the rock ‘n’ roll big sister; I am the law nerd little sister.  No one ever mixes us up.)

But back to the Supreme Court:  In the abstract at least, one of the best arguments that race-preferential admissions policies should not survive strict scrutiny is this one:  The public strongly opposes them.  You’d be shocked at how clear the polls have been on this for many decades.

Why do I think that’s a good argument (even though the Court is extremely unlikely to ever publicly credit it)?  The whole point of strict scrutiny is to put the strongest possible thumb on the scale against approving race discrimination. If the public favors a racially discriminatory law or policy, that shouldn’t count for squat.  The Court must nevertheless satisfy itself that the interest the law or policy serves is compelling and that the law or policy is narrowly tailored to achieve that purpose.  But the other way around is different.  If the public opposes the discriminatory law or policy and is instead on the side of race neutrality, it’s not easy to see how nine judges can cast themselves in the role of the High Priests of Justice and drag us kicking and screaming into a policy that has never been adopted by our elected officials.  If unelected elites can, consistently with the Constitution, impose race discrimination on an unwilling population, it’s time to lock your doors and bolt your windows.