Affirmative Action, Public Opinion, And Federalism

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THE PLANK JUNE 7, 2009

Affirmative Action, Public Opinion, And Federalism

I'm often sympathetic to Stuart Taylor's columns, but his latest effort is a real head-scratcher. The main thrust of Taylor's argument seems to be that the Supreme Court should ban racial preferences because it's what the majority of Americans want, even if their elected representatives decline to take a stand for fear of being labeled racist. That's a common enough view, but Taylor puts an odd twist on it, claiming that such a move wouldn't amount to judicial activism:

But is it judicial activism when the justices stretch the
Constitution to go over the heads of the political branches--which
are dominated by special-interest lobbies--not to overrule the voters
but rather to give them what they want?

Maybe not. ... Far from being activist, [a ruling for the white firefighters in the Ricci case] would vindicate the central
thrust of the 1964 Civil Rights Act and the Constitution's equal
protection clause.

Look, maybe it's time just to take the phrase "judicial activism" out back and shoot it dead, but if any judicial philosophy qualifies as "activist," then the one Taylor proposes--that the role of a court is to implement what it sees as the will of the public when the political branches fail to--surely qualifies. More importantly, it would produce some very bizarre results. A clear majority of Americans supports legalizing medicinal marijuana, yet political pressure tends to prevent that policy from being adopted legislatively. Does that mean the Supreme Court should create a constitutional right to use pot for medical purposes? Or what about farm subsidies--should they be struck down because special-interest influence keeps legislatures from eliminating them, in defiance of public opinion? Such actions by the Court would be immediately (and rightly) decried as blatant judicial activism--but it seems to be what Taylor is proposing.

Taylor also writes:

Initiated in the 1960s as a temporary expedient, racial preferences may
well become permanent if a Justice Sotomayor is eventually joined on
the Court by a like-minded successor to one of the Court's
conservatives.

That's a strangely Washington-centric view of the matter. A critical point Taylor notes--but whose impliaction he then proceeds to ignore--is that several states have, in fact, outlawed state-sponsored racial preferences at the ballot box. Voters in other states, including Arizona, will likely soon have the opportunity to follow suit. Elsewhere, governors and legislatures have taken up the issue, banning racial preferences in college admissions in Florida and nearly doing the same in Colorado. (Interestingly, Colorado voters also rejected a ban at the ballot box last November, suggesting that perhaps the legislative process isn't as out of touch with public opinion as Taylor suggests.) For the Supreme Court to step in would short-circuit this robust process of state experimentation and debate, which may, eventually, demonstrate that we can live without racial preferences. It's been thirteen years since California voters approved Proposition 209 banning affirmative action and the state hasn't disintegrated (well, okay, it has, but for other reasons).

Setting aside the (obviously more central) question of what, exactly, the Equal Protection Clause and the Civil Rights Act mandate, there are a variety of other good reasons why the issue is one that should be left up to the states. For one thing, it's where most of the action is these days anyway--federal racial preferences, to the extent they still exist, aren't as prominent or controversial. It's an area in which states with different racial compositions, social conditions, and political histories may justifiably conclude they have different needs. And if Taylor's hypothesis about intimidated legislators is correct, it seems like leaving it up to states would be a way to bring policy in line with public opinion without judicial intervention--it's hard to believe that pro–affirmative action interest groups carry the same influence in places like Boise and Des Moines as they do in Washington.

One can't help but sympathize with Frank Ricci--what happened to him is something I would not want to permit, were I a member of the Connecticut Legislature or the New Haven City Council. The public, in my view, is right to be ambivalent about racial preferences. But I fear that Taylor's unyielding hostility toward them--and, perhaps, toward Judge Sotomayor--is preventing him from recognizing a misuse of the federal judicial power that, in a less emotionally charged setting, he would have no trouble identifying.

--Josh Patashnik

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posted in: the plank, business, hospitality, law, politics, stuart taylor

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