Strengthening Constitutional Self-Government

No Left Turns

Terry Eastland on Race and the Constitution

Terry’s account of the recent decision is the most astute. Despite all the BROWN talk in the various opinions, the bottom line is that Roberts explains clearly that what Seattle and Louisville are doing simply has no justification in the reigning prcedents, in the compelling state interests of addressing intentional discrimination or the educational benefits of diversity. The effect of the decision will be fairly activist, but the argument is a model of restraint. Here the dissenters are the innovators. On the table, of course, is the need to question diversity as a compelling state interest, but there was no need or even no warrant to do so in this case. Eastland also shows how implausible and inconsequential Kennedy’s lonely waffling is. The question for discussion: Should the Republicans go further than the Court and campaign on "the colorblind Constitution," as Terry suggests? One reason they should: It would be better if the complete uprooting of race from the law would have as much support as possible from legislative initiatives and not appear to be an activist judiciary overruling the will of the people. The abortion mess is pretty much a judicial creation, but the Court didn’t invent but has only upheld some (usually basically legislative) affirmative action. Arguably a decision based on the proposition that all well-intentioned, race-based remedies are unconstitutional would be inconsistent with the general principle of judicial restraint.

Discussions - 1 Comment

Right, Roberts's opinion applies the Rehnquist Court's case law, from Croson to Grutter, to the K-12 context. Recall that in Croson and Adarand, Thomas and Scalia indicated they would eliminate the compelling interest standard which even under strict scrutiny held out the possibility the Court could uphold race coscious laws under certain conditions. Rehnquist demurred, perhaps in order to bring along the more fact based O'Connor, who authored all three opinions. Now, with Roberts and Alito on, the rest may apprehend a firmer minority ready to hue to the Harlan position. If so, that may help explain why Kennedy, who dissented in Grutter, plays it close to the vest here.

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