Strengthening Constitutional Self-Government

No Left Turns

Not So Fast

I read the article about Justice Stevens that Steven and Peter discuss below. Stevens’ quote is a little more ambiguous than they make it out to be. When Stevens talks about imposing the Justices’ will on the country, he didn’t expressly say that he wanted to impose his will on the country. He was making an argument for getting the Court out of the way and letting the state decide. He was saying that the conservatives would impose their will if they struck down the Michigan L.S. affirmative-action policy. I doubt you can use the quote below, all by itself, to indict Stevens as a justice who writes the law as he goes.

Discussions - 3 Comments

My that was a pregnant "all by itself."

While I agree that Stevens’ quotation itself is somewhat ambiguous, I don’t see any basis for Prof. Claeys’ interpretation either. Letting the state decide? Federalism does not figure large in Stevens’ jurisprudential universe -- I highly doubt that he was making a state deference argument. But even if he had a federalist instinct, this would hardly be the right case for it -- this was, after all, an equal protection claim. The whole idea was to displace state practice and law in favor of the equality principle.

Actually, as I read the article (I have not seen or read his full remarks), he seems to suggest that the Court was somehow deferring, not to the states, but rather to the collective "wisdom" and policy preferences of the rich liberals (e.g., corporations, "retired military officers," etc.) who managed to get big DC law firms to submit amicus briefs on their behalf in defense of their favored policy of preference. But here we see the true depravity of liberal condescension -- the most striking statement is the one Lane quotes at the end of the article: "There is no reason for the majority to grant preferences to the minority unless those preferences serve the best interests of the majority."

Wow -- Shelby Steele could not have said it better himself! This is appalling stuff -- corporations and schools apparently find it in their interest to discriminate based on race, so we should strike a humble pose and let them have their way.

As Peter would say, we’re in deep water here.

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