Bench Memos

Law & the Courts

Race-Conscious Decision-Making Is Always Dangerous

U.S. Supreme Court building in Washington, D.C. (Jonathan Ernst/Reuters)

Here’s an excerpt from the transcript of the oral argument in the voting-rights case argued this week before the Supreme Court:

CHIEF JUSTICE ROBERTS: You — you talk about the concern being that the analysis would be driven to racial proportionality under the Respondents’ approach.  Now I understand the concerns about that when you’re talking about districting, but why is that — why is that a bad thing when you’re talking about electoral procedures?

MR. CARVIN: Well, what it means is that any neutral system must be changed in order to maximize minority voting strength regardless of how strong the justification is. Things that provide no unfairness at all to minorities, you must rejigger every aspect of the time, place, and manner, from registration, to Election Day, to early voting,in order to maximize minorities’ participation. Why is that bad? Because it’s the same kind of race-conscious activity of subordinating —

CHIEF JUSTICE ROBERTS: Well, is it —

CARVIN: — neutral principles —

CHIEF JUSTICE ROBERTS: — is it really — is it maximizing participation or — or equalizing it? In other words, that only comes up when you have disparate results.  And — and why should there be disparate results if — if — if you can avoid them?

CARVIN: Because why should you — well, for example, because it would eliminate all the valuable antifraud concerns implicated in the ban on ballot harvesting and because it would substitute the federal courts and the state legislatures to make these rules.  The question is not what’s wrong with it. The question is why a system that imposes no unfairness on the group should nonetheless be changed simply because they find a different method of voting more convenient.

Now, I know that it’s entirely possible that Chief Justice Roberts was simply playing devil’s advocate here, but let me provide a response anyway.

It’s very dangerous to go down the road the Chief Justice is hypothetically contemplating — saying that the government should make decisions based in whole or even in part on whether or not they will lead to racially proportionate results. If one system considers only merit and another system considers both merit and racial results, then it is inevitable that the second system is going to have less merit.

Should the state be required to risk greater fraud under system A than system B because the latter system is designed simply to combat fraud and the former system is designed to combat fraud and achieve “balanced” racial numbers?

Should a university decide not to look at standardized test scores in determining admissions simply because it is concerned about the resulting racial “imbalance”? And is there really a difference between saying it is trying to “equalize participation” of this group (which does relatively less well on the tests) versus trying to “minimize participation” by that group (which does well on the tests)?

Should a police department decide not to adopt this versus that system of disciplining officers who have been complained against, because it is evaluating the systems not simply with an eye on what is fair to the policeman and the complainant, but also with an eye on whether the racial results will be politically correct?

Racial disproportions can always be avoided, but where doing so involves anything other than eliminating actual discrimination, it will inevitably cause discrimination.

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