Adam Liptak, writing in the New York Times, notes Jonathan Mitchell’s brief urging the Supreme Court to start applying the clear terms of the Civil Rights Act of 1964 to colleges — which would entail getting rid of admissions practices that discriminate on the basis of race. It closes by citing a counterargument from Harvard’s lawyers: The Court decided not to apply those terms back in 1978 (Regents of the University of California v. Bakke), and Congress has not chosen to pass a statute clearly outlawing such admissions practices.
Except it did, back in 1964. It’s hard to imagine new language Congress could pass reiterating its point that a Supreme Court majority could not work its way around in the same way the controlling opinion in Bakke did. And anyway, this argument against reconsidering mistaken decisions about statutes — while very influential on the courts, including on conservative justices — should itself be reconsidered. It amounts to treating congressional failure to undo the effects of such decisions as acquiescence to them.
What that treatment ignores is that our constitution, by design, creates a bias against congressional action. We cannot infer from the fact that Congress has not mustered a majority in each chamber to reverse a particular policy and then gotten a president to agree that any Congress and president would have imposed that policy in the first place. I’m inclined to think the Court should not invest deep significance in congressional inaction when it is the system’s strong default, especially as an excuse to stick with its own mistake.