April 25, 2014

Finally Getting It Right on Affirmative Action

Every once in a while a great, conflicted country gets an insoluble problem exactly right. Such is the Supreme Court’s ruling this week on affirmative action. It upheld a Michigan referendum prohibiting the state from discriminating either for or against any citizen on the basis of race. The Schuette ruling is highly significant for two reasons: its lopsided majority of 6-2, including a crucial concurrence from liberal Justice Stephen Breyer, and, even more important, Breyer’s rationale. It couldn’t be simpler. “The Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs.”

Every once in a while a great, conflicted country gets an insoluble problem exactly right. Such is the Supreme Court’s ruling this week on affirmative action. It upheld a Michigan referendum prohibiting the state from discriminating either for or against any citizen on the basis of race.

The Schuette ruling is highly significant for two reasons: its lopsided majority of 6-2, including a crucial concurrence from liberal Justice Stephen Breyer, and, even more important, Breyer’s rationale. It couldn’t be simpler. “The Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs.”

Finally. After 36 years since the Bakke case, years of endless pettifoggery – parsing exactly how many spoonfuls of racial discrimination are permitted in exactly which circumstance – the court has its epiphany: Let the people decide. Not our business. We will not ban affirmative action. But we will not impose it, as the Schuette plaintiffs would have us do by ruling that no state is permitted to ban affirmative action.

Eleven years ago, the court rejected an attempt to strike down affirmative action at the University of Michigan law school. The 2003 Grutter decision, as I wrote at the time, was “incoherent, disingenuous, intellectually muddled and morally confused” – and exactly what the country needed.

The reasoning was a mess because, given the very wording of the Equal Protection Clause (and of the Civil Rights Act), justifying any kind of racial preference requires absurd, often comical linguistic contortions. As Justice Antonin Scalia put it in his Schuette concurrence, even the question is absurd: “Does the Equal Protection Clause … forbid what its text plainly requires?” (i.e., colorblindness).

Indeed, over these four decades, how was “equal protection” transformed into a mandate for race discrimination? By morphing affirmative action into diversity and declaring diversity a state purpose important enough to justify racial preferences.

This is pretty weak gruel when compared to the social harm inherent in discriminating by race: exacerbating group antagonisms, stigmatizing minority achievement and, as documented by Thomas Sowell, Stuart Taylor and many others, needlessly and tragically damaging promising minority students by turning them disproportionately into failures at institutions for which they are unprepared.

So why did I celebrate the hopelessly muddled Grutter decision, which left affirmative action standing?

Because much as I believe the harm of affirmative action outweighs the good, the courts are not the place to decide the question. At its core, affirmative action is an attempt – noble but terribly flawed, in my view – at racial restitution. The issue is too neuralgic, the history too troubled, the ramifications too deep to be decided on high by nine robes. As with all great national questions, the only path to an enduring, legitimate resolution is by the democratic process.

That was the lesson of Roe v. Wade. It created a great societal rupture because, as Ruth Bader Ginsburg once explained, it “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the [abortion] issue.” It is never a good idea to take these profound political questions out of the political arena.

Which is why the 2003 Grutter decision was right. Asked to abolish affirmative action – and thus remove it from the democratic process – the court said no.

The implication? The people should decide.

The people responded accordingly. Three years later, they crafted a referendum to abolish race consciousness in government action. It passed overwhelmingly, 58 percent to 42 percent.

Schuette completes the circle by respecting the constitutionality of that democratic decision. As Justice Anthony Kennedy wrote in the controlling opinion: “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.”

And as Breyer wrote: “The Constitution permits, though it does not require … race-conscious programs.” Liberal as he is, Breyer could not accept the radical proposition of the Schuette plaintiffs that the Constitution demands – and cannot countenance a democratically voted abolition of – racial preferences.

This gives us, finally, the basis for a new national consensus. Two-thirds of the court has just said to the nation: For those of you who wish to continue to judge by race, we’ll keep making Jesuitical distinctions to keep the discrimination from getting too obvious or outrageous. If, however, you wish to be rid of this baleful legacy and banish race preferences once and for all, do what Michigan did. You have our blessing.

© 2014, The Washington Post Writers Group

Who We Are

The Patriot Post is a highly acclaimed weekday digest of news analysis, policy and opinion written from the heartland — as opposed to the MSM’s ubiquitous Beltway echo chambers — for grassroots leaders nationwide. More

What We Offer

On the Web

We provide solid conservative perspective on the most important issues, including analysis, opinion columns, headline summaries, memes, cartoons and much more.

Via Email

Choose our full-length Digest or our quick-reading Snapshot for a summary of important news. We also offer Cartoons & Memes on Monday and Alexander’s column on Wednesday.

Our Mission

The Patriot Post is steadfast in our mission to extend the endowment of Liberty to the next generation by advocating for individual rights and responsibilities, supporting the restoration of constitutional limits on government and the judiciary, and promoting free enterprise, national defense and traditional American values. We are a rock-solid conservative touchstone for the expanding ranks of grassroots Americans Patriots from all walks of life. Our mission and operation budgets are not financed by any political or special interest groups, and to protect our editorial integrity, we accept no advertising. We are sustained solely by you. Please support The Patriot Fund today!


The Patriot Post and Patriot Foundation Trust, in keeping with our Military Mission of Service to our uniformed service members and veterans, are proud to support and promote the National Medal of Honor Heritage Center, the Congressional Medal of Honor Society, both the Honoring the Sacrifice and Warrior Freedom Service Dogs aiding wounded veterans, the National Veterans Entrepreneurship Program, the Folds of Honor outreach, and Officer Christian Fellowship, the Air University Foundation, and Naval War College Foundation, and the Naval Aviation Museum Foundation. "Greater love has no one than this, to lay down one's life for his friends." (John 15:13)

★ PUBLIUS ★

“Our cause is noble; it is the cause of mankind!” —George Washington

Please join us in prayer for our nation — that righteous leaders would rise and prevail and we would be united as Americans. Pray also for the protection of our Military Patriots, Veterans, First Responders, and their families. Please lift up your Patriot team and our mission to support and defend our Republic's Founding Principle of Liberty, that the fires of freedom would be ignited in the hearts and minds of our countrymen.

The Patriot Post is protected speech, as enumerated in the First Amendment and enforced by the Second Amendment of the Constitution of the United States of America, in accordance with the endowed and unalienable Rights of All Mankind.

Copyright © 2024 The Patriot Post. All Rights Reserved.

The Patriot Post does not support Internet Explorer. We recommend installing the latest version of Microsoft Edge, Mozilla Firefox, or Google Chrome.