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Tuesday the U.S. Supreme Court, in a unanimous, unsigned opinion,
dismissed as "improvidently granted" the petition for
a writ of certiorari in Adarand Constructors, Inc. v. Mineta.
It is not unusual for the Court to "dig" a case (i.e.,
dismiss as improvidently granted). In non-lawyerese,
the Court has decided that, on second thought, it won't grant review
in a case that it earlier had agreed to hear. This happens when
the Court belatedly learns something about the case that makes it
an unattractive vehicle for deciding the substantive legal issue
the Court had hoped to.
That's what
happened here. The Court thought it was going to get to opine on
the constitutionality of a current federal program that awards racial
and ethnic preferences in highway contracting and subcontracting.
But it turns out that there were some procedural problems in the
case of which the Court had not been aware, and so the case won't
be reviewed by the justices after all.
This is obviously
a disappointment to Randy Pech, the subcontractor who was denied
a subcontract a dozen years ago because he happens to be white,
as well as the conservatives — on and off the Court —
who'd hoped for another legal nail to be driven into the coffin
of affirmative action. But the Court's action Tuesday was not a
surprise, nor is it much of a setback.
It's not a
surprise because, when the case was argued before the Court on Halloween,
it was obvious that several of the justices — including several
of the conservatives — were troubled by the case's posture.
Normally it's the Court's conservatives who stick up for judicial
restraint, and that means they are the sticklers for the "passive
virtues," as Professor Alexander Bickel called them, of insisting
the all the procedural i's be dotted and t's be crossed. So they
may have decided that a good decision on the merits wasn't worth
the price of setting a bad procedural precedent.
And it's not
much a setback because the law is already pretty good in this area.
For contracting cases, in particular, those challenging racial and
ethnic preferences usually win these days. The Supreme Court, when
the Adarand case was before them in 1995, made clear that
federal, state, and local governments that discriminate have to
clear the highest constitutional hurdles in order to justify their
actions. The lower courts have generally gotten the message.
There are over
a half-dozen active cases — in Minnesota, Washington, New Jersey,
Illinois, Nebraska, Kansas, and Texas, at last count — challenging
the same federal highway program that Randy Pech did. Those cases
will continue, and more will be filed. Moreover, the plaintiffs
in them know that the Court is eager to review the issue, so they
have every incentive to appeal their cases on up the ladder even
should they lose. The adverse court of appeals decision that Pech
suffered will have noted next to it that the Supreme Court granted
review, then changed its mind: a big, qualifying asterisk next to
it for those who would cite it as precedent.
The Court's
decision Tuesday is a mixed blessing for the Bush administration.
It had decided last summer to follow the Clinton administration
in defending the program, to the consternation of conservatives.
In some respects, then, today's action must come as a relief: The
administration technically won, since the federal program is left
standing, and yet the Court didn't have to write a decision upholding
the program on the merits, which would have been a bitter pill to
swallow for a conservative like Solicitor General Ted Olson, who
opposes such discrimination.
On the other
hand, the issue is now back in the lower courts and in the federal
bureaucracy. As long as the case was before the High Court, the
administration could dither. Now, though, it will be on the spot
again. How will it administer this program? How will it defend ir?
And will it ask Congress to change the underlying statute that sanctions
the use of racial and ethnic preferences?
Congress, too,
should feel on the spot — or at least its members should who
have any sense of shame. Whatever the Bush administration does,
any conservative in Congress should now feel an urgency about banning
the federal government from classifying the country's citizens according
to race and ethnicity and granting favors and punishments based
on which box the citizen checks.
The struggle,
in short, continues. The Supreme Court's decision today is no more
than a comma in a long narrative. It is a multi-front struggle:
in courtrooms, legislatures, college admission offices, corporate
boardrooms, tiny offices of bureaucrats of every kind, and on and
on. The overwhelming majority of Americans of every color rejects
affirmative discrimination, but it continues and so, therefore,
must the battle against it.
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