Tuesday, February 21, 2012

Affirmative Action is Back on Center Stage . . . and I Feel . . . Fine?

The Supreme Court granted review today in Fisher v. University of Texas at Austin. The question at the heart of the case is disarmingly simple, even innocent enough: whether the admittedly race-conscious undergraduate admissions program at the University of Texas at Austin meets the exacting demands of the Equal Protection Clause.

A sensible thing to do at this point, I imagine, is to read the lower court opinions, maybe even carefully.  With a clear sense of what the University of Texas-Austin has done, one could then re-read Grutter and try to chart the Supreme Court's expected path.  According to Judge Higginbotham on the 5th Circuit, the University of Texas--Austin is on safe constitutional ground per Grutter.  But is it?

I'd rather think about this case differently.  First and foremost, could the Court possibly overturn its 9-year-old holding in Grutter? Even in the face of the Rule of 4, which requires only 4 votes in order for the Court to accept a case, what other motivation could the justices have to grant review here? The next step is also quite clear: if admonitions from Justices Scalia and Kennedy are accurate indicators, the Court will soon face the constitutionality of Title VII and the Voting Rights Act.  This gets us to the end game: could Fisher be the beginning of the end of the Second Reconstruction?

Make no mistake, Fisher is only a preview of a much bigger constitutional showdown.  Worse yet, these questions will not be decided by law properly understood but by the justices' notions of fairness and justice.  If you don't believe me, take a look at Judge Garza's special concurrence in Fisher, an opinion that begins, aptly, by professing to adhere to "fundamental principles of constitutional law:"
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV. One of the Amendment’s “core principles” is to “do away with all governmentally imposed discriminations based on race,” Palmore v. Sidoti, 466 U.S. 429, 432 (1984), and to create “a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement.” Richmond v. J.A. Croson Co., 488 U.S. 469, 505–06 (1988).  
This is why “[r]acial and ethnic distinctions of any sort are inherently suspect and . . . call for the most exacting judicial examination.” Miller v. Johnson, 515 U.S. 900, 904 (1995) (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 291 (1978) (opinion of Powell, J.)).  It matters not whether the racial preference is characterized as invidious or benign: strict scrutiny applies regardless of “the race of those burdened or benefitted by a particular classification.”  Shaw v. Reno, 509 U.S. 630, 650–51 (1993) (quoting Croson, 488 U.S. at 494). To survive such exacting scrutiny, laws classifying citizens on the basis of race must be “narrowly tailored to achieving a compelling state interest.” Miller, 515 U.S. at 904.
This passage should strike the uninitiated as odd and peculiar.  What exactly would constitutional first principles look like in this context?  At the very least, these principles should be connected in some way to the constitutional text or the intentions of its drafters.  Judge Garza nods favorably towards the constitutional text, but a mere glance makes clear that the text is terribly unhelpful.  He then quotes favorably from recent cases. But to know these cases is to know that the Court never engaged in a serious examination of the text of the Amendment or the intentions of its drafters.  Far from it.  

Why then, is race a forbidden category, subject to the strictest constitutional scrutiny?  Not because the text of the 14th Amendment demands it, or because it was so intended by the Reconstruction Congress.  There is only one answer: because judicial conservatives do not like it.

Unfortunately, it is really that simple.

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