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.