Five Votes
The name of the game at the Court is five votes. Going into this week, before the school decisions had been handed down, if you could count, you suspected that there were five votes to overrule Grutter, the U of M law school decision that basically affirmed Justice Powell's opinion in Bakke and upheld affirmative action programs in higher education. Justice Kennedy, the current "swing" justice, dissented in Grutter, so, with Alito replacing O'Connor (the author of Grutter), there were five votes to overrule Grutter and hold that, essentially, all but the most narrowly remedial affirmative action programs violate the equal protection clause (or its Fifth Amendment analog).
This was a distinct possibility because the lower courts had decided the school cases on the basis of Grutter. It wouldn't have been a stretch.
On Monday, the BongHits4Jesus and taxpayer standing cases came down, in both of which there was no majority to overrule precedent. So that raised a doubt. But I was still betting that Grutter was toast.
So I was still surprised Thursday that the five-justice conservative majority went so far out of its way not to overrule Grutter. From a constitutional jurisprudence perspective, the school decision handed down this week doesn't really break that much new ground. At most, I would say, the decision strictly limits how far lower courts can go in applying Grutter. Grutter doesn't apply to K-12, so if you go there, you risk reversal.
Politically, of course, the decision was a big deal. But the liberal outrage--and isn't it nice to see Justice Breyer become a liberal, after all these years? Now, if he had just felt some of that outrage in Hamdi, a few years back, but that's another story, for another post--the liberal outrage is aimed at a long string of decisions and developments, even if it doesn't know it. The Court basically started down the road it's on now in 1978, with Bakke, and in the minority set-aside decisions in the 1980s and 1990s. Even Grutter justifies only certain affirmative action policies--remember, the U of M's undergraduate admissions program was struck down in the companion case.
From a jurisprudential perspective, then, I don't think that this week's school decision changes that much. So I was actually surprised that folks got so angry. In fact, given that the Court did not overrule Grutter, I think that from a jurisprudential perspective, liberals and moderates should feel that a much worse outcome was actually averted.
Politically, though, the big question going forward is how the outrage over the decision affects the current members of the Court--specifically, Kennedy and the Chief.
Kennedy, we know, cares about his press clippings. But the real question is whether the Chief does. He got such a free pass from the liberal and moderate establishment in the confirmation "battle" based on his charm and "non-threatening" demeanor. But now that he's really come out as an archconservative, how will that affect his standing with the establishment? Especially in terms of race relations, there is an establishment consensus, and the school decision this week attacks that consensus. Since race touches everything in contemporary U.S. society, let's see how that plays out.
The other question that I have is how the school decision affects the relationship b/w the Court and the new Democratic majorities in Congress. It seems to me that folks got so used to the tension b/w conservative Republicans and the Court that we may have forgotten that Democrats might have problems with the judiciary, too. That's one where we'll just have to stay tuned.
posted by Number Three @ 7:19 AM
2 Comments:
Even if this decision upholds Grutter, however meekly, it's still more radical to banish racial calculations from public schools than from higher ed. After all, in higher ed, you've got a reasonably strong countervailing claim: that racial beancounting, even if it takes the form of broad ranges rather than strict quotas, violates the basic principle of scholastic merit that otherwise dominates admissions decisions. Now, as we know, that's not really true either. All kinds of factors mitigate academic "merit" at the college level (athletics, legacy status, geographical diversity, etc.). But you can still make a semi-plausible case that merit is the primary consideration and race-based admissions undermine that.
Not so with racial balance in primary and secondary public schools, where there simply is no countervailing principle. What exactly is being sacrificed to racial balance? Geographic proximity to your kids' school? Maybe, but that's pretty thin gruel. I'm not sure how that actually qualifies as a "principle" (moral or legal), and if it did it would overturn almost every decision ever made about how to draw school zone maps. There are ALWAYS kids who need to go farther than they would like to attend school, or who would like to go to some other school than the one for which they are zoned, and the decisions made on these matters always have some element of arbitariness, which makes them WORSE than decisions based on racial balance goals.
Now, maybe you can just simplify and say "racial considerations" are always unjust. But you've still got to explain WHY. What's being lost, and how does the loss weigh, as a matter of principle, against what is supposedly gained? And it seems to me that while the SCt may have legitimate grounds for distrusting such considerations in higher ed (even if I think they're wrong), you can't even begin to make that case for public school systems.
What you're left with is this: simply pretending that race exists and acknowledging it as a social cause to be accounted for in public policy decisions violates the equal protection clause. But by that logic, the SCt is itself violating equal protection by taking these cases (since that does in fact recognize race as a relevant category upon which choices are made) and treating them differently from other categories (income, sex, intelligence, etc.). In other words, racial laissez-faire implodes as an internally contradictory foundation upon which to base a legal argument.
But the point is that race as a factor, outside of cases where the policy if narrowly remedial (e.g., busing to achieve a unitary school system, given a history of segregation), has not been consistent with the Court's case law for a very long time. The one exception is Grutter, where the issue is diversity and its relation to the First Amendment. So the Court didn't do anything that "radical," in the sense that it would have been changing the law to uphold the policies as acceptable uses of race.
This is not to say that I agree with that line of cases. But it's been around a while. The Court's decision was not "radical" in the sense of departing from the precedents, no matter how wrong-headed they may be.
It's also possible to be a liberal and not be thrilled with the artificial nature of Grutter. But Grutter is what the conservative Courts of the last 30 years have left us. And, from my point of view, Grutter is better than nothing.
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