Few issues have tumbled more vertiginously from the top of the political agenda than affirmative action. There was a time when the topic of quotas and racial preferences partly dominated the discussion of domestic policy. That time has long since passed.
So it came as a bracing shock Tuesday to be reminded that the US Supreme Court is still adjudicating the issue. It issued a major ruling that upheld Michigan’s 2006 constitutional amendment banning the use of affirmative action as a factor for admission in the state’s public universities.
That amendment had been adjoined to the state’s constitution following an election in which nearly 4 million votes were cast — and in which the side supporting the amendment prevailed by a 16-point margin, 58 percent to 42 percent.
No matter; in a highly provocative 2011 ruling, the 6th Circuit Court of Appeals declared it unconstitutional. The Supreme Court on Tuesday, with a 6-2 vote, threw the 6th Circuit’s ludicrous decision onto the trash heap of history’s discarded ideas.
When we talk about “racial preferences,” we’re talking about the behavior of public entities regarding either employment of minorities or the admission of minorities to schools and universities. Affirmative action explicitly puts a finger on the scale of justice to help some — to elevate their chances of getting a job or getting a place in school — over others.
Those who support the notion say it is necessary to remedy past discrimination against African-Americans in particular. But there has always been a problem of elementary fairness with this: How can any white person born after the passage of the Civil Rights Act of 1964 be held responsible for explicitly discriminatory laws that predate her birth?
How can any person seeking entry into a college today, born more than 30 years after the Civil Rights Act, require a remedy for explicit legal discrimination that may have beset her grandparents, but not her?
Time and again, the Supreme Court has ruled that such practices violate the 14th Amendment’s guarantee of equal treatment under the law to all citizens. And it did so yet again Tuesday.
It’s been nearly 36 years since the first major racial-preferences ruling — the Bakke case in 1978. Nearly every time since, the court has said that in the specific case on which it is ruling, racial preferences violate the 14th Amendment.
And yet the court’s majority (in various configurations) continues to say there are increasingly vague and undefined circumstances in which race can and should “play a factor,” circumstances that prevent it from declaring the entire kit and caboodle of affirmative action unconstitutional.
In 2003, in another ruling on the University of Michigan, Justice Sandra Day O’Connor declared that affirmative action should have an end date — say, 25 years from 2003. In doing so, she implicitly acknowledged that the policy offends elementary fairness — else why end it at all?
In one of the scorching opinions that mark him as perhaps the greatest public polemicist in American history, Justice Antonin Scalia pours out his frustration at this continual display of bad constitutional faith.
“It has come to this,” he begins. He tears into the lower court’s offensive ruling, the amorphous argumentation of the dissenting opinion by Sonia Sotomayor (who basically says she likes affirmative action and it’s nice and you shouldn’t touch it) — and even the logic of the majority opinion with which he concurs.
The Great Dissenter of our time concludes by quoting the greatest of all dissents, Justice John Harlan’s 1896 rejection of the “separate but equal” racial doctrine in the notorious case of Plessy v. Ferguson: “As Justice Harlan observed over a century ago, ‘Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.’ The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.”
The court didn’t stand in their way Tuesday. But it refuses to lay the proper path forward by following through on the logic of its own ruling.
Yes, it has come to this. Racial preferences are nakedly unconstitutional, and yet they continue to play some role because the Supreme Court fears the wrath of the professional affirmative-action lobby.
And so, as though he has been cast in the public-policy version of “Groundhog Day,” Nino Scalia finds himself, in his 28th year on the high court, reliving the same bad jurisprudence over and over, when the simple and inarguable truth is right there for everyone to see.