"We granted certiorari to resolve a conflict in the lower courts over the appropriate mental state for threat prose�cutions under 18 U. S. C. �875(c)."

"Save two, every Circuit to have considered the issue�11 in total�has held that this provision demands proof only of general intent, which here requires no more than that a defendant knew he transmitted a communication, knew the words used in that communication, and understood the ordinary meaning of those words in the relevant context. The outliers are the Ninth and Tenth Circuits, which have concluded that proof of an intent to threaten was necessary for conviction. Adopting the minority position, Elonis urges us to hold that �875(c) and the First Amendment require proof of an intent to threaten. The Government in turn advocates a general-intent approach. Rather than resolve the conflict, the Court casts aside the approach used in nine Circuits and leaves nothing in its place. Lower courts are thus left to guess at the appropriate mental state for �875(c). All they know after to day�s decision is that a requirement of general intent will not do. But they can safely infer that a majority of this Court would not adopt an intent-to-threaten requirement, as the opinion carefully leaves open the possibility that recklessness may be enough."

Writes Justice Thomas, the sole dissenter in Elonis v. United States (PDF) one of this morning's new Supreme Court cases.
Click for more �

"A coalition of more than 60 Asian-American groups filed a federal discrimination complaint against Harvard University, claiming racial bias in undergraduate admissions."

"Asian-American students with almost perfect college entrance-exam scores, top 1 percent grade-point averages, academic awards and leadership positions are more likely to be rejected than similar applicants of other races, according to their administrative complaint, filed Friday with the U.S. Education Department�s Office for Civil Rights," Bloomberg reports.

Harvard denies any discrimination....

Robert Iuliano, the school�s general counsel said in a statement that the college�s admissions policies comply fully with the law and are essential to the school�s mission. "The college considers each applicant through an individualized, holistic review having the goal of creating a vibrant academic community that exposes students to a wide range of differences:  background, ideas, experiences, talents and aspirations," Iuliano said.

That idea has worked when traditionally discriminated-against applicants are given a plus factor, but it should be much harder to sell when explaining a minus factor. We're used to white applicants losing a few positions at Harvard each year to give a boost to some applicants from traditionally discriminated-against groups. The compelling interest that has worked in the court cases is the school's idea of diversity in the classroom � as Iuliano put it: "creating a vibrant academic community that exposes students to a wide range of differences: background, ideas, experiences, talents and aspiration." That's a "trust us" abstraction that has allowed schools to avoid what it perceives as the problem of too many white people, but there will be more skepticism when it means not enough white people.

I got to that article via David Lat on Facebook, where he begins by wondering "if the objection to a 70 percent Asian student body... is, to put it bluntly, 'aesthetic.'" Later, he clarifies:

What I was trying to suggest is that maybe Harvard isn't "racist" against Asians in some kind of animus-driven or "we think you are inferior" way, but instead has an "aesthetic" issue with, well, too many people of one group running around... not wanting "a student body that's 70% anything." But I'd suggest that a student body that's 70% white, which Harvard had at some point -- and might still have, I haven't checked the current stats -- is really not any "worse" than a student body that's 70% Asian, except perhaps from an "aesthetic" perspective. (I will concede -- and I can do this as an Asian-American -- that we have less "aesthetic" diversity than whites, because whites have greater differentiation in hair color and eye color. So if you're thinking in terms of what makes admissions brochures look like Benetton ads, you don't want 70% Asians -- but you can get away with more whites because you can have blondes, brunettes, and redheads, with brown eyes, blue eyes, and green eyes. That's what I mean by "aesthetic" diversity -- or "visual diversity," as admissions consultants for fancy private schools here in New York like to say. My Filipina cousin was trying to get her white-looking son into one of these schools and asked if his being half-Asian would help from a diversity perspective. The consultant said no, because "he doesn't offer visual diversity.")

That might help us understand why people who are not racist would do it, but I don't see how it fits the classroom diversity idea that has been the only compelling interest that has supported affirmative action in the Supreme Court cases. "Aesthetics" is a word Clarence Thomas used in dissent, criticizing the classroom diversity idea:

A distinction between these two ideas (unique educational benefits based on racial aesthetics and race for its own sake) is purely sophistic � so much so that the majority uses them interchangeably. Compare ante, at 16 (�[T]he Law School has a compelling interest in attaining a diverse student body�), with ante, at 21 (referring to the �compelling interest in securing the educational benefits of a diverse student body� (emphasis added)). The Law School�s argument, as facile as it is, can only be understood in one way: Classroom aesthetics yields educational benefits, racially discriminatory admissions policies are required to achieve the right racial mix, and therefore the policies are required to achieve the educational benefits. It is the educational benefits that are the end, or allegedly compelling state interest, not �diversity.�

Harvard's lawyer spoke of the "vibrant academic community that exposes students to a wide range of differences: background, ideas, experiences, talents and aspirations" � that is, an environment that provides educational benefit to everyone who attends the school. That doesn't translate too well into the need to see enough blond hair. And nobody, not even David Lat, wants to get caught saying you people all look alike.

"We have come to a strange place in our separation-of-powers jurisprudence."

"Confronted with a statute that authorizes a putatively private market participant to work hand-in-hand with an executive agency to craft rules that have the force and effect of law, our primary question�indeed, the primary question the parties ask us to answer�is whether that market participant is subject to an adequate measure of control by the Federal Government. We never even glance at the Constitution to see what it says about how this authority must be exercised and by whom."

So begins the concurring opinion by Clarence Thomas in the just-issued Department of Transportation v. Association of American Railroads. 

Here's Sasha Volokh with some detail on the case, in which he'd filed an amicus brief:

I argued in my brief that, regardless whether Amtrak is public or private, the delegation is fine under conventional non-delegation doctrine: Currin v. Wallace (1939) validated a delegation to a private actor, and so the usual �intelligible principle� test applies. Under that test, the delegation is valid because Amtrak�s power is sufficiently constrained by the requirement that it act to maximize profits....

[The majority Court decided] the case based on the boringest, most Amtrak-specific grounds... Justice Alito�s concurrence is interesting and deserves a separate post. Justice Thomas�s concurrence in the judgment provides the complete rethinking of the non-delegation doctrine on originalist grounds....