Whether or not you like racial preferences, they involve a way of looking at the
law that is sophisticated rather than commonsensical. If the New Haven opinion is fair, it is the kind of fairness you learn at Yale Law School, not the kind you learn in the South Bronx.
It is not clear to me why "racial preferences" are sophisticated as opposed to commonsensical and requires a Yale Law education as opposed to life experiences to understand. Take some commonsensical points of departure. Suppose that you are a person of color who grew up around other people of color in the barrio or in the inner-city. There you were surrounded by people of color that you deemed to be extremely smart and very hardworking, but who were also given few breaks in life. Indeed, you might be that person yourself; you felt that you always had to work harder than your white peers but received fewer goodies than they did. How would you think about an entrance test for becoming a firefighter or an exam that determined who got promoted up the ranks in which most of the candidates of color did poorly and the white candidates did well? Moreover, what would you do if the law told you that those types of disparate impacts were permitted only in very limited circumstances?
It seems to me that commonsense would tell you one of two things: either the candidates of color were stupid or lazy (option one) or the system was unfairly rigged against them (option two). Of those two choices, which one would be commonsense option, if you were a person of color and you grew up in difficult circumstances? My guess is that the commonsense option is option one.
After that illuminating paragraph, Caldwell went on to assert that the rationale for affirmative action, "that minorities are cut off from fair access to positions of influence in society . . . has been undermined, to put it mildly." That's not putting it mildly, that's putting it stupidly. One can argue that intentional race discrimination is on the decline and therefore so should affirmative action. That would be fair. One could argue whether the conclusion follows from the premise but there would be something to argue about. However, the naked and without evidence proposition that citizens of color have equivalent access to positions of influence is simply wrong.
Consider of a relevant marker of differential access, the education gap. 17% of black adults over 25 and 40% of Latino adults over 25 have failed to complete high school. The comparable number for whites is 9%. Black SAT scores in critical reading lag behind that of whites on average by about 94 points. You could find similar statistics for almost all levels of educational achievement; there is a definitive sometimes narrowing, sometimes widening but persistent gap. My guess here is, and this is only a guess, if you grew up in the barrio you would understand that it is unfair that people of color do not have the same access to positions of power than whites and you might even do something about it when the law requires you to. But that might make too much common sense.