Each time the federal government of these United States comes close to emerging from its eternal psychosis on the question of using a crude system of racial classifications to condition citizens’ relationship with the state, it suffers a relapse. In the Supreme Court’s latest ex cathedra decree on the issue, regarding the use of racial preferences in Michigan state-university admissions, there were four separate opinions for the prevailing side alone, together commanding the concurrence of six justices, while Justices Sotomayor and Ginsburg of the Left bloc were united in dissent, and Justice Kagan absented herself from the case. The most charitable reading of that outcome, which also is the gullible reading, is that the legal questions are difficult and therefore splintered these, the best and most judicious legal scholars in our land. The more likely reading is that the Court is engaged in politics rather than in jurisprudence, that this has been the case for some time, and that the various justices’ reading of the Constitution is dependent upon their decisions rather than the other way around.
It is difficult not to share in the frustration of Antonin Scalia. “It has come to this,” Justice Scalia writes. “Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself.” He goes on to quote himself in Grutter v. Bollinger: “‘The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.’ It is precisely this understanding — the correct understanding — of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it.” The plaintiffs in the case argued that by adopting a constitutional amendment, the people of Michigan unfairly disadvantaged those who would seek to use the political process to impose official racial preferences on the people of that state; George Will points out that the First Amendment likewise disadvantages those who wish to establish a Church of the United States and fill its collection plates with tax dollars. That constitutions limit the possible outcomes of the democratic process is the reason we have them; if they do not limit the power of majorities, they are little more than studies in calligraphy.