The Supreme Court relieved itself of another opinion on the subject of affirmative action last month, Adarand Constructors V. Pena. While this effort was marginally better that its predecessors, if only because it vectored in the right direction, it did little to clarify the legal or moral principles on which remedial racial policies might be justified.
The facts of the case were simple enough. A white subcontractor submitted the low bid for the installation of guardrails on a federal highway project in Colorado. Notwithstanding, he lost the job to a Hispanic-owned company because governing federal law confers a preferment upon groups presumed to be “socially and economically disadvantaged.” The white contractor sued, and in a 5-4 decision, the Court ruled that he had been unfairly treated.
The specific legal holding of the Court was that federal programs granting special preferences on the basis of race or sex would henceforth be subject to “strict scrutiny” by the judiciary, and would be upheld only upon demonstration of a “compelling” state interest. Some years ago, the Court established that very test as the standard for reviewing minority set-aside programs created by the states. Technically speaking, all Pena did was to say that a single standard will now govern both state and federal programs granting minority preferment.
That was hardly earth-shaking jurisprudential news unless, of course, you happened to glance at the editorial page of the New York Times on the day after Pena came down. In that uniquely schoolmarmish tone it reserves for the instruction of unruly children, the Times waxed sulfuric, fearing the worst for the future of race relations and declaring the event “A Sad Day for Racial Justice.” As if on cue, similar apocalyptic predictions issued forth from other partisans of affirmative action, and in the weeks and months ahead, you can be sure that various epigones of high-minded noblesse oblige will follow suit. The latter will almost certainly include diverse divines, Catholic and non-Catholic, who have for years chanted the secular liberal agenda of the Democratic party.
However, all of this because the Supreme Court said that state and federal affirmative action programs must now abide by the same rules? If the meaning of phrases like “strict scrutiny” and “compelling state interest” strike you as less than instantaneously self-evident, you are already far ahead of judges and professors who have written countless thousands of words over the years trying to extract intelligent meaning from juridical obscurantism. The truth of the matter is that the Supreme Court has yet to develop a coherent constitutional rationale to explain why some people deserve to be treated more equally than others. It hides instead behind the smoke of legal obfuscation.
The American public, by and large, has never bought the logic of affirmative action, which arbitrarily rewards or punishes people on the basis of their membership in selected racial, ethnic, or sexual groups. By sharp contrast, Americans overwhelmingly support the moral sense of the civil rights revolution of the 1960s and especially the rationale that underlay the Civil Rights Act of 1964. That is to say, the American people support equality but not privilege, and they are doubly suspicious when the latter is paraded as the former. They have endured nearly a quarter-century of quotas and set-asides with commendable democratic patience. To characterize that disposition, as some do, as mean-spirited, racist, or sexist simply will not wash.
Affirmative action programs are in trouble these days not because some cabal of sheet-wearing bigots are determined to bring back Jim Crow, but because the legal and moral rationale used to justify those programs cannot be sustained. It is one thing to say that Smith, who has discriminated against Jones on account of race, ought to make Jones whole. It is quite another to say that Jones is entitled to preferment over an innocent third party because some anonymous other discriminated against Jones or his ancestors in the past. The law of affirmative action as it has developed over the years has failed to distinguish between these two categories, and that is why the public now insists on change.
In its Pena ruling, the Supreme Court in effect took note of this public disaffection and clearly invited new litigation to resolve the issue at some unspecified point in the future. In the meantime, the body politic is going to have a swing at the issue for the first time in more than a generation. In the end, it is likely that the Court will take its cues from the resolution of the political branches. But as the debate moves forward, let us hope the proponents of affirmative action will not presume that they have sole possession of the franchise on morality. When they feel like lecturing on social justice, let them first instruct the innocent white guardrail contractor in Colorado.