Strengthening Constitutional Self-Government

No Left Turns

The Narrow Anti-Diversity Ruling

The NATIONAL REVIEW wishes the Court had gone further and declared all use of race as a legal category unconstitutional. We defenders of judicial restraint disagree. The principle found in the relevant precedents is that every individual must be treated as an individual, or not merely as a member of a race. But race may be used as one factor among many in thinking about individuals, with the burden of proof being on those who must show that the use of race is narrowly tailored to achieve a compelling governmental interest. Justice O’Connor clearly did not apply the principle correctly in GRUTTER. There was no serious inquiry into diversity (as opposed to, say, justice or equality) as a govermental objective, and there was deference to (no strict scrutiny of) Michigan’s factual claims. But in the Seattle and Louisville cases, the principle was used correctly to strike down policies, and there was no need to develop a new one.
Declaring all racially-based remedies unconstitutional would have been contrary to all precedent (the Court has never said the Constitution is color-blind--BROWN itself is ambiguous and sort of rightly used by both sides in this controversy), needlessly controversial, and surely an act of judicial activism. We conservatives have to be consistent in applauding the Court when it has a modest but firm view of its role in our constitutional order. I’m more inclined to applaud the Court when it acts aggressively to withdraw itself from places it never should have been to begin with--abortion, for example.

Discussions - 1 Comment

Q for Peter: You describe this as a modest approach. Do you see the holding as removing the Court from future decisions or as staking out a reduced place, but still a place, for the Court to continue to act? Further, what is the political impact on the states and national legislatures? Does it give them a clear path to follow or merely a general path that will lead to sloppy legislation, with the understanding that the courts will clean it up? Lastly, you are certainly correct that the Court has never really validated Harlan's contention that the Constitution is color-blind. Indeed, it has bowed to politics in contending that race, or other factors, can allow for purposeful discrimination. Are you arguing that to validate Harlan, through the Court, is unconstitutional - e.g., not the role of the Court to make sure a determination, or that it would so go against the politics of the last 50 years to be impracticable, and thus open the Court to criticism? On this point I am thinking of Marshall's understanding of the potential weakness of the Court as he crafted the Marbury decision. Thanks for the post and comments.

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