Friday, June 27, 2003
I remain impressed at the contradiction in the conservative camp between reactions to the affirmative action and sodomy cases. A strict constructionist and respecter of precedent should have no problem with the affirmative action decision. It is plain that at the time of the 14th Amendment's ratification that no one contemplated the amendment demanded a colorblind society. And legislative enactments and judicial decisions alike make it clear since 1964 that no one regarded the Civil Rights Act in that way either (including, for example, MLK, who favored affirmative action). Affirmative action may be bad policy (I think it usually is). It may be unjust. But it is not obviously unconstitutional. And it is unclear to me why conservatives wanted to have the government constrain private and semi-private bodies (e.g. state universities) as to how they choose to admit students or hire employees or what have you. The fairest criticism to bring against O'Connor's opinion in the case is that by laying down no clear standards for what is or is not permissable discrimination, it aggrandizes to the Court the power of deciding this question in every subsequent instance.
In the sodomy case, the Supreme Court did precisely what so many conservatives wish they would have done in the affirmative action case: laid down a clear, principled rule based on clear precedent (Griswold, Roe, etc.) and struck down a law that discriminated among different classes of citizens. But conservatives are appalled: the Court extended a privacy right with minimal basis in the text of the Constitution, struck down longstanding (if now controversial and arguably stupid) laws on the books of many states, overturned its own precedent (from 1986) and opened the way to far more expansive Court interventions in our ongoing culture wars. Conservatives are right, in my opinion, on the Lawrence case. Justice Thomas' dissent is very much in accord with my views here: the law was stupid, and should be repealed, but there is no Constitutional basis for the Court to strike it down.
But conservatives can't have their cake and eat it, too. All laws discriminate: they give money to one but not to another, make a third a criminal and let a fourth go free. That is the function of law. The question is whether the basis of discrimination is legitimate. To say that a school or employer may not seek a racially diverse student body or workforce is to substitute the discrimination of the Court for the discrimination of the school or employer. To say that the state of Texas may not prohibit certain acts favored by a certain class of citizens is to substitute the discrimination of the Court for the discrimination of the state of Texas. If the framers of the 14th Amendment had wanted to mandate that schools admit on the basis of objective criteria of individual merit, they could have done so. If the framers of the 4th Amendment had wanted to add a "penumbra" specifying that no law shall be passed to restrict sexual relations between consenting adults, they could have done so. They did not do so, in either case.
The story of the last 50 years is of the continuing expansion of the power of the Court. Over the last 15 or 20 years, conservatives have increasingly accommodated this expansion, encouraging the Court to interfere more readily to define state government immunities from Congressional action (the so-called Federalism revolution), to prohibit discrimination of which conservatives disapprove (in the case of affirmative action), and to adjudicate disputed election results (in Bush v. Gore). There have been tactical benefits to this accommodation, but the strategic loss has significant: the conservative vision of a reluctant Court has grown less and less credible.
The Supreme Court should no more embroil itself in the politics of affirmative action than it should in the politics of abortion or gay rights. The Court should look not at polls nor at what will smooth the way to the future, but to the past, for the Court is the past's custodian, embodied in the text of the Constitution and the intent of its ratifiers, and in the framework of its own past decisions. The Court has plenty to do protecting our freedom of of speech, press, assembly and exercise of religion - to pick just a few examples - without electing itself the arbiter of rights on which the People neither past nor present has seen fit to opine decisively.