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Debating the Court's Affirmative Action Decision

An exchange

Mark Wilson/Getty Images News

We've asked TNR Legal Affairs Editor, Jeffrey Rosen, to debate with Michael McConnell, the former U.S. Court of Appeals judge and one of the leading conservative legal scholars, over the spate of decision expected this week at the end of the current Supreme Court Term. Today, they dig into this morning's ruling over a Texas affirmative action case that the justices sent back to a lower court. Watch this space, which we'll update as the two respond to one another's arguments. The exchange also appears on the website of the National Constitution Center, which Rosen leads.

To: Jeffrey Rosen

From: Michael McConnell


Commentators were quick to declare the Supreme Court’s 7–1 decision this morning in the affirmative action case, Fisher v. University of Texas, a “punt.” One person called it “a nothing-burger.” Not so fast. The decision is more important than it may appear at first glance.

First, there was more substance to the decision than that. To be sure, the Court did not tell us whether the University’s program is constitutional or not. It said almost nothing about the merits. But—with the full force of a seven-Justice majority—the opinion stressed that strict scrutiny means strict scrutiny, at least with respect to the means chosen to achieve diversity. Past decisions made that questionable. In past affirmative action decisions, the Court resembled parents patting themselves on the back for being so strict, all the while allowing the kids to eat ice cream before spinach, and to choose their own bedtime. This opinion tightened the screws. The key passage: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” On this point, “the University receives no deference.”

Taken seriously, that calls most university affirmative action schemes into question. There are almost always ways to achieve diversity that do not involve judging applicants by their race. The Court did not reach the actual merits of the Texas case, but hanging over the decision is the fact that the University of Texas achieved a higher percentage of black and Hispanic students with a race-neutral system than it did under its prior race-conscious one. The California university system seems to have achieved reasonable levels of diversity even after a state constitutional prohibition on explicit use of race. Indeed, to the extent that universities substitute proxies based on economic background, actual diversity—as opposed to mere racial diversity—might be better achieved without explicit use of race. In this sense, the Court has made the explicit use of race in the student admissions process more difficult and maybe impossible. That is not a “punt.”

Not that the Court’s holding is particularly clear. What, exactly, are the “educational benefits of diversity?”  Can they be measured? If they cannot be measured, how can strict scrutiny be strict? How much diversity is enough? Is it anchored to the demographics of the applicant pool? Will courts defer to universities about this question? What makes a race-neutral plan “workable”? Presumably there are trade-offs. Any university can attain all the diversity it wants if it sacrifices other objectives, such as attention to academic merit. Use of the Ten Percent Plan presumably lowers the average SAT and GPA scores of the incoming class, by some amount. How is a court supposed to judge the size of these trade-offs?

But second: All this talk presupposes that it is legitimate for public universities to seek a certain approximate racial mix. We are only arguing about how to achieve it. Genuine color-blindness is not on anyone’s agenda. That is an indication of how entrenched affirmative action is.

And third: Fisher further entrenches the highly dubious intellectual construct of the Grutter opinion. I would hazard the guess that no one really believes Grutter got it right. For those who think all use of racial classifications is a constitutional wrong, Grutter is a hypocritical mess, saying one thing and doing another. But supporters of affirmative action cannot like Grutter either. Supporters of affirmative action do not support affirmative action because there is an ill-defined “diversity” exception to the constitutional color-blindness rule. They believe that government action to improve the lot of a subordinated class is not a denial of equal protection of the laws. They believe affirmative action is worthy in principle, not that it satisfies strict scrutiny.

In this broader sense, Fisher is not so much a “punt” as it is an exercise in inertia. With the noble exceptions of Justices Thomas and Ginsburg (almost), and maybe Scalia, the Court is determined to keep to the path laid by Grutter, even if that decision does not make much sense from any principled point of view.


To: Michael McConnell

From: Jeffrey Rosen


Many thanks for this thoughtful contribution. I agree that Fisher isn’t a punt, but view its significance differently. The decision is a tribute to the moderation of Justice Kennedy and Chief Justice Roberts, who defied expectations and insisted on a narrow rather than a broad opinion. Unlike Justice Clarence Thomas, who would have overturned the Grutter case, and cases stretching back to the Bakke decision in 1978, which hold that educational diversity is a compelling interest for universities to pursue, Kennedy and the six conservative and liberal justices who joined him continued to accept Grutter as good law. That is a hugely significant act of judicial restraint, especially since most commentators expected the Court to go the other way. (At the oral argument, Justice Sonia Sotomayor said to those who were challenging the University of Texas, “So you don’t want to overrule Grutter, you just want to gut it.”)

You consider Grutter a “hypocritical mess,” but its clear principle that educational diversity is a compelling interest has been the law of the land since 1978 and for Burkean conservatives who care about precedent, overturning it would be been tremendously disruptive for the settled expectations of universities across America. I think Justice Kennedy and Chief Justice Roberts, as well as Justices Alito and Scalia, get lots of credit for having been true bipartisan minimalists on this score.

You lament the fact that “genuine color-blindness is not on anyone’s agenda.” But as a constitutional matter, for conservatives who care about the original understanding of the Constitution, should it be? You are the most distinguished conservative constitutional historian in the country when it comes to the original understanding of the Fourteenth Amendment. In your 1995 article in the Virginia Law Review, “Originalism and the Desegregation Decisions,” you argued persuasively that the Framers of the Fourteenth Amendment only intended the government to be color-blind when it comes to civil rights, not political or social rights, and you’ve conceded that majorities of the Framers and ratifiers of the Fourteenth Amendment may not have conceived equal access to education to be a fundamental civil right when the amendment was ratified in 1868. You have a sophisticated response to this point—namely, education may have been considered a civil right by 1875, and it should be considered one today. But this requires a degree of living constitutionalism that Justices Scalia and Thomas aren’t usually willing to indulge.

On that score: What did you make of Justice Thomas’s remarkable concurrence? He embraces an extremely categorical prohibition on racial classifications. He repeated his sweeping claim from his Grutter dissent, insisting that “only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a ‘pressing public necessity’ sufficient to satisfy strict scrutiny of racial classifications.” Do you really think the Framers of the Fourteenth Amendment would have agreed with this remarkably categorical prohibition—especially because, as you have argued, they expected Congress, not the courts, to take the lead in enforcing the equal protection clause? And how does Justice Thomas reconcile his position that racial classifications can only be used to prevent violence with the race conscious measures adopted by the Fourteenth Amendment’s framers, including the freedman’s bureau?

More broadly, Thomas makes this arresting claim: “There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationist’s assertion that segregation yielded those same benefits.” This isn’t the first time he has equated affirmative action on the one hand with segregation on the other. Thomas also compares affirmative action to slavery, noting that “slaveholders argued that slavery was a ‘positive good’ that civilized blacks and elevated them in every dimension of life.” Do you agree with his analogy between affirmative action and slavery and, if not, can you help us understand why he thinks the two are constitutionally similar?

The policy merits of affirmative action are among our most difficult and contested national questions. But on the constitutional merits, I would think for an originalist like Justice Thomas, the only question is what the Framers and ratifiers thought the Fourteenth Amendment meant and whether their vision is consistent with the affirmative action program adopted by the University of Texas. There is not a word in Justice Thomas’s opinion about that original understanding. I wonder whether you think his opinion would have been stronger if it had included that history and, if so, what aspects of the history you think suggest that Grutter should be overruled and the University of Texas’s affirmative action program struck down. 


To: Jeffrey Rosen

From: Michael McConnell


Moderation is one way to describe it. Essentially, the Court exploited the incoherence of the Grutter opinion and used it to reach essentially the opposite conclusion it reached in the earlier case. Grutter pretended to use strict scrutiny while giving the university leeway to do what it wanted to do. Fisher pretends to uphold diversity (in order to produce “education benefits,” not social justice), while instructing lower courts to strike down affirmative action programs unless they satisfy almost impossibly high standards of necessity. The surprising thing is not that Justice Kennedy and Chief Justice Roberts (and you fail to mention Alito) took this course, which reins in affirmative action without provoking an outcry, but that Justices Breyer and Sotomayor went along.

There is a great deal of pretending all around. Universities pretend they are interested in diversity, but they show little interest in any form of diversity other than race. Classrooms in elite universities are among the most homogeneous places on the planet. Religious diversity? Who cares? Political diversity? Not on the radar screen. Economic diversity? Well, universities may care just a tad, but really only when it serves as a proxy for race. Ask university officials or faculty why they care so intensely about affirmative action, and the answer will be some version of rectification of social injustice, not bringing a greater variety of opinions and experience to the classroom.

And Grutter tells universities they have to pretend about the administration of their program. They are required to befog their race-based admissions decisions in a haze of subjective criteria. Quotas are strictly forbidden; factors are in. The only difference between quotas and factors is that the latter lack transparency and objectivity. As Justice Ginsburg comments in her admirable dissenting opinion, programs that “candidly disclose their consideration of race [are] preferable to those that conceal it.” (Ginsburg dissent, slip op. 3 (brackets in original)). But Grutter penalizes candor, and Fisher perpetuates the need for pretense.

The Justices pretend, too. The Justices in the majority claim to reject the idea that there are two different standards of equal protection, one applicable to old-fashioned racist action and another applicable to “benign” discrimination in favor of historically underrepresented groups (slip op. 6). But they treat as “race neutral” programs like the Ten Percent Plan, which as Justice Ginsburg wittily states, “only an ostrich could regard . . . as race unconscious” (dissent, slip op. 2). In every other context, governmental use of a criterion for the purpose of producing a particular racial result is treated as a form of intentional racial discrimination.  

So, one side of the Court pretends to seek the educational benefits of diversity, when they actually believe in a fundamentally different conception of equal protection, in which classifications designed to improve the lot of subordinated groups are not merely tolerated but celebrated. The other side pretends to believe in a single color-blind ideal under the Equal Protection Clause, but actually supports a kind of formal neutrality long rejected for most anti-discrimination law. Adhering to precedent has its virtues, but it can perpetuate incoherence.

You ask me about the history of affirmative action, and rightly so. Many academic supporters of affirmative action seem to believe that the history unequivocally supports their position. You refer to “the race conscious measures adopted by the 14th Amendment’s framers, including the freedman’s bureau.” But as you must realize, the category of “freedman” was not a racial category; it referred to people who until recently were held in chattel slavery. A close look at the laws passed by the Reconstruction Congress indicates only one, almost trivial, example of genuinely race-based legislation – designed to make sure that black soldiers serving the Union in the War received their full entitlement to pay and pension. I think it is unfortunate, both for the affirmative action debate and for constitutional theory more generally, that none of the Justices were willing to look at this history, because it would have cleared up some misconceptions.

But there is a real blessing in a 7-1 decision. Whatever its intellectual weaknesses, the Justices seem to have hit upon a doctrinal formulation that will turn down the temperature on this divisive issue. We will not be fighting about the Supreme Court’s affirmative action decision. That is certainly welcome. 


To: Michael McConnell

From: Jeffrey Rosen


Dear Michael,

Many thanks for another great post. We’re certainly agreed on the last point, about the virtues of the Court having turned down the temperature on affirmative action. And I’m delighted that you share my admiration for Justice Ginsburg’s wonderful and witty dissent. She has long been an advocate for the virtues of transparency – one of her heroes is Justice Harlan, who was also transparent about his reasons – and as a policy matter, I bet that history will vindicate her insistence that “honesty is the best policy,” as she put it in her Gratz dissent, and that an “accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through wins, nods, and disguises.”

Still, as a constitutional matter, I wonder if you’re too hard in criticizing both the liberal and conservative justices (as well as Grutter itself) for “incoherence.” The truth is that the categorical principles you say both sides actually believe in but don’t have the courage fully to embrace – formal neutrality for the conservatives and celebration of laws designed to overcome subordination for the liberals – are hard to locate in either the original understanding of the equal protection clause or in pragmatic deference to democratic judgments on a question where citizens sharply divide. Instead both principles represent a wooden, ahistorical textualism for the conservatives and a kind of natural rights vision of retributive justice for the liberals that are too categorical to capture the complexity of the constitutional arguments on both sides of the debate. So what’s wrong with some compromise, even if the price is pristine adherence to principle? This is precisely the kind of statesmanlike concern for institutional legitimacy over ideological purity that Chief Justice Roberts promised when he first joined the Court, and that he displayed so impressively in the health care decision last June. Now he seems to have helped persuade three conservative colleagues and two liberal colleagues to join him in his vision (I bet Justice Kagan would have joined, too, if she weren’t recused.) Good for him, and good for the Court!

One last point about constitutional history. I asked you, as the leading conservative historian of the Fourteenth Amendment, how the original meaning of that Amendment could be squared with a decision striking down affirmative action in public universities. You reply by referring to the specific intentions of the Fourteenth Amendment’s framers who embraced, you say, only one explicitly race-conscious program. But in your landmark path article about Originalism and the Desegregation Decisions, you suggest that what matters isn’t the specific intentions of the Framers but instead the more general understandings of the ratifiers of the Fourteenth Amendment – and you read the intentions of the ratifiers at a broad level of abstraction to include the more liberal views of those who voted for the Civil Rights Act of 1875, even though those views might have clashed with the specific understanding of the Framers, who didn’t consider education to be a civil right. Aren’t you shifting the baseline, just as Justice Thomas does when he quotes Frederick Douglass but not the Fourteenth Amendment ratifiers? This kind of bait-and-shift originalism may become all the more glaring tomorrow, or later this week, if the originalist conservatives vote to strike down parts of the Voting Rights Act under the Fourteenth Amendment, even though – as you’ve argued repeatedly – both the framers and ratifiers of the Fourteenth Amendment clearly intended it to apply to civil right but not at all to political rights. I don’t mean to harp on the historical question, but if originalism doesn’t constrain justices in the cases they care most about, what does it constrain?

Thank you again for a wonderful conversation and look forward to continuing it soon.

With appreciation,