The Left—including, of course, Senator Kennedy—feels very strongly that practices that lead to racial disproportionalities (“disparate impact”) ought to be illegal, even if the practices are neutral on their face, neutrally applied, and neutrally intended. The problem with this approach, of course, is that it creates great pressure to avoid disproportionalities by adopting quotas, or getting rid of perfectly legitimate criteria.
Now, in the voting area, the use of the results test has led to just such results—racial gerrymandering, for instance (see my recent column on NRO). And, since the Constitution itself does not ban nondiscriminatory practices simply because of their disparate impact, there is a potential constitutional problem here. Kennedy was trying very hard to get Roberts to reassure him that there is no such problem, and seemed finally to have thought that Roberts gave him some such assurance. I don’t see how Roberts could, since this is surely an issue that is going to be litigated after the Voting Rights Act is reauthorized in some form or other, and Roberts had earlier noted this.
I’m less troubled by the colloquy on affirmative action in university admissions. How “compelling” the government interest in using racial preferences is will of course hinge on the real-world consequences of their use. Of course, those consequences are more bad than good in my opinion and, I hope, in Roberts’s.