Thankfully, it will soon have the chance.
Thankfully, it will soon have the chance.
T here are many thorny legal questions within modern American life, but, while it generates all manner of Sturm und Drang in the culture, the matter of affirmative action is not among them. When the Supreme Court next has the chance — as it will by the end of this year — it should end the practice proudly and without compunction. The purpose of the judiciary is to uphold the law as it is written, and the law as it is written forbids racial discrimination. In a system such as ours, that is the end of the story.
Progressives do not like to be told that they have spent the last 90 or so years lying about the Constitution and the law, but . . . well, progressives have spent the last 90 or so years lying about the Constitution and the law. Finally, those lies are coming back to bite them. At Slate, Mark Joseph Stern complains that if the Court nixes affirmative action, it will be instituting a “new policy” that “will not be enacted by elected representatives in Congress, or the president, or state legislatures,” but by “six justices of the Supreme Court—policymakers whom no one elected and no one can vote out.” But this is the usual sophistic poppycock. If the Court nixes affirmative action, it will be upholding a rather famous law, the Civil Rights Act of 1964, which was enacted by both “elected representatives in Congress” and “the president.” As Ramesh Ponnuru observed earlier this week, the Civil Rights Act holds that “no person in the United States shall, on the ground of race, color, or national origin . . . be subjected to discrimination under any program or activity receiving Federal financial assistance.” In other words, affirmative action is flatly illegal. If Stern does not like this, he must agitate for the repeal of the law, much as progressives in California have tried (unsuccessfully) to do with their own state’s non-discrimination statutes.
More sophisticated advocates of affirmative action like to point to precedent. But precedent is irrelevant when it is nonsensical, and most of the jurisprudence in this area is, indeed, nonsensical. Writing in 2003, the Supreme Court decided in Grutter v. Bollinger that “in the context of . . . individualized inquiry into the possible diversity contributions of all applicants,” the use of “race-conscious admissions program[s]” was legal if the aim was to produce “the educational benefits that flow from a diverse student body,” before insisting that “race-conscious admissions policies must be limited in time” and predicting that “25 years from now, the use of racial preferences will no longer be necessary.” Which . . . where to start? There are, quite clearly, no “time”-based provisions in either the Civil Rights Act or the Fourteenth Amendment. There is, quite clearly, no warrant for the Courts to ignore the plain meaning of our laws when it stands in the way of the outcomes they prefer. And there is, quite clearly, no other circumstance than this in which American judges would ignore the 1964 Civil Rights Act to excuse racial preferences. If this be “precedent,” then precedent can go hang.
Clarence Thomas argues that, statutory questions to one side, “the Constitution does not pander to faddish theories about whether race mixing is in the public interest,” and that, as a result, “the Equal Protection Clause strips States of all authority to use race as a factor in providing education.” For this Thomas is inexplicably lambasted. And yet it is worth recording that his view neatly echoes that of Justice John Marshall Harlan, whose dissent in Plessy v. Ferguson held both that “our Constitution is color-blind and neither knows nor tolerates classes among citizens,” and that “the law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” Harlan, who had himself owned slaves, was old enough to remember the passage of the Fourteenth Amendment, and he was brave enough to reject any argument that sought to dilute it with a self-interested “but.”
Criticizing the Court’s first erroneous affirmative-action decision, 1978’s Regents of the University of California v. Bakke, then-professor Antonin Scalia contended caustically that “the decisions of each of the Justices on the Court” had been “tied together” not by law, but “by threads of social preference and predisposition,” and noted that it wasn’t entirely clear which was the controlling opinion. Despite having pronounced that “governmental racial distinctions of any sort are ‘odious to a free people’ and their validity ‘inherently suspect,’” Scalia observed, the Court had sanctioned the practice on the irrelevant grounds that it would allow a medical school to expose its students to a “diversity of people.” This, Scalia concluded, represented a “historic trivialization of the Constitution” and “the most evil fruit of a fundamentally bad seed.”
In the 43 years since, that bad seed has grown into a bad tree. The Supreme Court has been handed an ax. It should get chopping, post-haste.