The Corner

Re: Ricci Reaction

Ramesh, I agree it was clearly right for the Supreme Court to avoid the core constitutional question whether mandatory race-based measures (particularly the disparate impact component of the Civil Rights Act, amended in 1991) violate equal-protection principles. There was a way to resolve the case under the statute, and when that is so the Court shouldn’t reach out and decide constitutional questions — especially when doing so would involve invalidating an act of Congress.

But I don’t think Justice Scalia’s comment that the constitutional question is “not an easy one” necessarily suggests that he doubts the 14th Amendment bars discrimination. He didn’t fully explain what he meant, but I don’t see anything in what he said that intimates such concerns. See, e.g., “But if the federal government is prohibited from discriminating on the basis of race, Bolling v. Sharpe, 347 U.S. 497, 500 (1954), then surely it is also prohibited from enacting laws mandating that third parties . . . discriminate on the basis of race”; and “Government compulsion of such design [to achieve intentional discrimination] would therefore seemingly violate equal protection principles.”

If Justice Scalia was furtively making a point about original meaning at all, one wouldn’t expect to see a citation to Bolling v. Sharpe. That ruling would be hard to justify on originalist grounds since the 14th Amendment equal protection clause is expressly applied only to the states and doesn’t mention the federal government at all. I think the more likely interpretation of Scalia’s short concurrence is that (a) the Court would not want to invalidate an act of Congress (and its precedents admonish against doing so unless there is no other alternative), but (b) it doesn’t look like disparate-impact provisions have much chance of surviving equal-protection scrutiny, and (c) therefore we ought to start thinking about whether there is any way to harmonize them with the 14th Amendment. 

On that last point, Scalia suggests perhaps looking at “disparate impact” as if it were a mere “evidentiary tool” — i.e., a test to be applied to determine if there is cause to probe whether intentional discrimination has occurred, but not a fact that, on its own, establishes intentional discrimination. It seems to me that if Scalia believed intentional discrimination was justifiable under the original meaning of the 14th Amendment, there wouldn’t be much reason at this point to struggle with harmonizing disparate impact and equal protection.

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