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Politics, the Supreme Court, and Affirmative Action
By Brad Joondeph
In the recent decision of Grutter v. Bollinger, the Supreme Court held that it was constitutionally permissible for public colleges and universities to consider race in student admissions. Race-conscious admissions programs must be "narrowly tailored" to the goal of achieving diversity in their student bodies. Specifically, such programs must be "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." Under this rather exacting scrutiny, the University of Michigan's undergraduate admissions program, which assigned a specific number of points to certain applicants on the basis of race, was unconstitutional. But the Court held that Michigan's law school program was permissible, thus upholding the continuing validity of affirmative action in higher education.
To me, the decision in Grutter was transparently political, in the sense that the outcome was grounded more in the political choices of the justices and the surrounding political context than in any objective legal principles. Of course, the Court's previous decisions concerning the use of race in government programs defined what was at issue, constraining the Court's discretion in important ways. For instance, the Court hardly could have held that universities were constitutionally obligated to pursue race-conscious admissions programs; prior decisions made that argument untenable. But the ultimate decision that racial diversity in higher education is a compelling state interestand thus a valid justification for affirmative actionwas a political choice. It could not be deduced logically from the relevant sources of law, such as the Equal Protection Clause of the Fourteenth Amendment or the Court's prior decisions. These were too indeterminate to supply something we could call a "correct" answer.
Accusing the Court of engaging in politics might seem like a stinging accusation. After all, the common understanding is that, in our constitutional system of separated powers, the Supreme Court is supposed to operate outside the realm of politics. Its principal function in our system of "checks and balances," or so the argument goes, is to check the excesses of the political branches. Cases are to be decided according to objective and neutral principles of law, not the ideological values of the justices or prevailing public opinion. The very legitimacy of the Court, many argue, depends on this separation of law from politics.
But this conception of the Supreme Court is more myth than reality. First, in cases like Grutter, the sources of supposedly neutral, objective legal principles are usually malleable enough for the Court to provide legitimate justifications for resolving the issue either way. There are sound legal arguments on both sides. Something must ultimately push the Court to accept one outcome over the other, and that something will usually be the political values of the justices, even when the justices themselves do not realize it. By political values, I do not mean the simple desire for a "conservative" or "liberal" outcome in the particular case before them (though this may be part of it). Rather, I mean the justices' views of a just society in the broadest sense. This includes such things as the values of consistency in legal interpretation, the rule of law, and the importance of justifying outcomes with persuasive legal arguments.
Second, the Supreme Court is also political in the sense that its decisions are inevitably constrained by the prevailing political views of the nation as a whole. The Court is not politically accountable in the same way as Congress or the president, but it is nonetheless generally a majoritarian institution. And Grutter is a terrific example. In the course of explaining why affirmative action in higher education is constitutional, Justice O'Connor expressly adverted to the views of several important (albeit elite) constituencies in our democracy: the leaders of major educational institutions, of the business community, and of the military. These groups made clear in amicus curiae briefs filed with the Court that, in their view, affirmative action was vital to the health of our democracy. Justice O'Connor's ultimate legal conclusion rested in large part on the opinions expressed by these constituencies.
Is such an appeal to popular opinion in the context of resolving a question of constitutional law appropriate? Or is it inconsistent with the Court's essential role in our constitutional democracy? In addressing this question, we need to acknowledge that the Court has never really played the role of "counter-majoritarian hero," standing up to present political majorities so as to protect individual rights on matters of substantial political significance. History instead shows the Court to be quite responsive to shifting political winds. Consider what is perhaps the most famous individual rights decision handed down by the Court, Brown v. Board of Education (1954), which held that racial segregation in public education was unconstitutional. Although Brown was quite unpopular in the Deep South, it was generally consistent with the social mores of the nation as a whole. Moreover, given the massive resistance to desegregation in the South, the Court made few serious efforts to enforce Brown until the late 1960s. As of 1964, only 1 percent of African-American children in the South were attending integrated public schools. Thus, both Brown itself and the Court's hesitant approach to its implementation were sensitive to the relevant political contexts.
Conversely, when Court has flouted sustained majority opinion on highly salient issues, it has sustained serious blows to its institutional authority and been knocked back into line. In the Dred Scott decision (1857), the Court attempted to solve through judicial decree the question that was tearing the nation apartthe permissibility of slavery in the territories. But the country did not accept the Court's decision, and the matter was ultimately resolved by the Civil War and Reconstruction. In the early 1900s, the Court attempted to impose its view of laissez-faire economics on the country by holding that economic regulations, such as laws imposing a minimum wage or prohibiting child labor, were unconstitutional. But the overwhelming majority of Americans supported the New Deal and the emergence of the modern welfare state. The Court was ultimately forced to abandon its decisions and embrace a new understanding of the Constitution, an episode that brought the Court into substantial disrepute.
In short, this influence of prevailing political opinion on the Court is not something about which we should be squeamish, but instead something inherent in our constitutional system. By design, the Court's power derives exclusively from the persuasiveness of its decisions. And this means persuasiveness to the entire country, not just those who study constitutional law. As Alexander Hamilton wrote in Federalist No. 78, the judiciary "will always be the least dangerous" branch of government. It has "no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society," but instead "must ultimately depend on the aid of the executive arm even for the efficacy of its judgments." Institutionally, the Court has no choice but to be cognizant of the political context of its decisions.
If the Court necessarily must take politics into account, the question of whether it should do so in any given case seems only to be one of degree. Is this a case about which the country cares deeply, or is it something that most of the nation will ignore? Is this a time for the Court to use its political capital, or is it decision that could undermine the Court's institutional integrity? There are no easy answers, and we might rightly criticize the Court's conclusions on these points in any given case. But the argument that the Court should willfully blind itself to popular opinion seems untenable.
Seen in this light, I think the Court's reliance on popular opinion in Grutter was generally salutary. First, there is some value to candor in judicial opinions, particularly in cases of this significance. If the views of the educational, business, and military leaders mattered to Justice O'Connor, it seems helpful and healthy that she admitted so explicitly and explained how they affected her reasoning. In this way, her judgment is subject to examination and criticism that would be impossible if her true rationale were shielded from public view.
Second, accounting for prevailing national opinion seemed particularly appropriate in this case. Grutter effectively leaves the decision about the wisdom of affirmative action in higher education to the democratic process. Had the Court held that affirmative action was unconstitutional, it would have closed off political debate on the issue; the Court would have been imposing its view about affirmative action on the entire country for the indefinite future. Such a decision is all the more significantand potentially more costly to democracywhen prevailing opinion actually supports affirmative action. Widespread popular support for affirmative action therefore provided a somewhat neutral, institutional grounding for the Court's decision. The Court left the matter for the states to decide for themselves. Some states may continue to use it, others may decide (as California has) to discard it. Either way, the Court has left open avenues for political deliberation and experimentation.
Moreover, I would distinguish between instances in which the Court uses public opinion exclusively and cases in which the Court uses it to bolster a conclusion that it can otherwise justify with traditional legal arguments. Most Americans believe that the Court's decisions must be explainable to some degree in neutral legal principles. The requirement that courts justify their opinions in these termseven when they are not the true reasons for their decisionsserves an important checking function on judicial power. Thus, it is important that the Court's opinions, even when alluding to popular opinion, be independently justifiable in these more traditional, doctrinal terms.
In the end, then, we should not be troubled by the political nature of the Court's decision to uphold affirmative action in Grutter. The Court is necessarily a political institution, a reflection of the ideological views of the justices and the nation as a whole. The Court's explicit allusion to public opinion might have been unusual, but it was not somehow unsettling to our constitutional system. Rather, it was a refreshing breath of judicial candorit revealed considerations that, by necessity, always affect the Court's decisions. And in this particular case, I think the Court's decision to leave the question of affirmative action in higher education for further political deliberation was an admirable instance of judicial humility. The justices essentially acknowledged that this is a matter on which the country is largely divided, and that perhaps the Court was therefore not the best institution to conclusively decide the question, for now and for all of us.
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