Kinsley, again: This time he takes on affirmative action. He does a good job seeing through the muck of the "victims" on both sides, but he does that weird pirouette again, as he did with taxes, addressing the personal. He says, quite rightly, of Justice Powell's "no quota" compromise, "Trouble is, the Constitution is not supposed to split the difference. It is supposed to declare basic principles." Exactly. So why does he go on to say, of plaintiff Grutter in the case the Supremes will hear this term:

Even assuming, implausibly, that every single one of the special-treatment minority students was less qualified than Grutter and would not have been admitted if they were white, that would have improved Grutter's own chances by about one-eighth. The likelihood that affirmative action done her in is very small.

Wait, is this about declaring basic principles or not? Grutter can prove that Michigan admitted students less qualified than she, unless race is a qualification. But Kinsley appears to want a higher standard: He wants Grutter to prove that one of the places an affirmative action beneficiary took would have been hers. That's an unreasonable standard, as he implies in his logical "basic principles" dismissal of the Bakke quota/factor compromise.