Harry Blackmun v. CCRI.

On November 27, three weeks after the citizens of California ratified the California Civil Rights Initiative, Judge Thelton Henderson of the U.S. District Court in San Francisco enjoined Governor Pete Wilson from enforcing it. Invoking a Supreme Court decision from 1982, Washington v. Seattle School District No. 1, Henderson concluded that there is a "strong probability" that ccri is unconstitutional, because it denies racial minorities "the right to full participation in the political life of the community." Although Henderson's reading of the 1982 case isn't entirely implausible, the Supreme Court is unlikely to strike down ccri if and when it finally hears the case. A closer look at the intricacies of the Seattle case may help to suggest why the current justices are unlikely to agree that the Constitution prohibits the citizens of California from forbidding their state to discriminate, or grant preferences, on the basis of race or gender.

No one quite has the nerve to claim in public that the federal Constitution requires states to adopt race or gender preferences. The argument is a little subtler: although states are ordinarily free to repeal programs that they don't have an obligation to pass in the first place, the Supreme Court, in the early 1980s, suggested that certain kinds of repeals are constitutionally problematic. In the 1982 case, the citizens of Washington state were angry at a Seattle school board for mandating racial busing. They passed an initiative that forbade busing for the purpose of racial integration, while permitting it for nonracial reasons.

The Supreme Court, in a 5-4 decision written by Justice Harry Blackmun, struck down the initiative. Although Blackmun acknowledged that African Americans disagreed about the wisdom of busing, he argued that a program that "at bottom inures primarily to the benefit of the minority, and is designed for that purpose" couldn't be removed from the ordinary legislative arena to popular initiative level, where minorities may find it harder to compete. "It would be equally questionable," Blackmun said, "for a community to require that laws or ordinances `designed to ameliorate race relations or to protect racial minorities' be confirmed by popular vote of the electorate as a whole, while comparable legislation is exempted from a similar procedure."

The Seattle case, if it were decided today, would probably come out the other way. Of the five-member majority, only Justice Stevens remains on the Court; and Justices O'Connor and Rehnquist dissented. Nevertheless, lower-court judges are required to apply the law, rather than to anticipate it; and in a plausible argument that Judge Henderson has tentatively endorsed, Vikram Amar of the University of California at Davis and Evan Caminker of ucla suggest that, in light of Blackmun's logic, the California Civil Rights Initiative cannot stand. Henderson wrote in his Temporary Restraining Order that, in the wake of ccri's ratification, proponents of race and gender preferences must now ask the citizens of California to amend the state constitution, while proponents of preferences on other grounds "continue to have access to the political process at all levels." Because California's political mechanisms have been "modified to place effective decision-making authority over a racial issue at a different level of government," Henderson concluded, ccri is probably unconstitutional.

Henderson's reading of the Seattle case, although hardly absurd, is open to question on several levels. It seems odd, first of all, to suggest that the California Civil Rights Initiative, an antidiscrimination amendment that seeks to make race and gender irrelevant in the assignment of public benefits, is, in fact, a racial classification that favors one racial group over another. In the Seattle case itself, when Justice Powell anxiously suggested in dissent that Justice Blackmun's logic would prevent the state legislature, for example, from repealing a controversial affirmative action plan adopted by a state law school, Blackmun dismissed Powell's fears. "The horribles paraded by the dissent--which have nothing to do with the ability of minorities to participate in the process of self-government--are entirely unrelated to this case."

Does CCRI impede "the ability of minorities to participate in self-government" more than a ban on racial busing does? Blackmun's conception of "political participation" is so opaque that it's hard to say. According to Judge Henderson, the relevant question doesn't have anything to do with formal barriers to political participation; instead, Henderson writes, "The relevant question is whether, in reality, the burden imposed by a law necessarily falls on minorities and women." But this question--whether a ban on affirmative action is good or bad for minorities--is itself the passionately contested policy question the voters of California thought they had settled at the polls. Some minority voters, such as Asian Americans, opposed ccri by a relatively narrow margin of 56 to 44, perhaps because, in a color-blind regime, the percentage of Asian Americans at U.C. Berkeley would increase more dramatically than the percentage of whites. Other minority voters, such as African Americans, opposed ccri by a larger but hardly unanimous margin of 73 percent to 27 percent. White women, for their part, supported ccri by margins similar to white men: 58 percent to 42 percent. It would be the height of arrogance for a federal judge, under the guise of protecting "political participation," to constitutionalize the policy judgment that the citizens of California rejected: namely, that affirmative action is good for women and minorities.

The presumption that a racial preference "inures primarily to the benefit of the minority," to use Blackmun's clunky phrase, is also much harder to sustain in light of the color-blind revolution that the Supreme Court embraced during the 1990s. In 1995, the Court emphasized that purportedly benign affirmative action programs, designed to help minorities, deserve the same degree of judicial skepticism as malignant racial discrimination. In light of the Court's recent warnings that affirmative action programs can "foster harmful and divisive stereotypes," and can promote racial balkanization, it seems improbable that the current justices would hold, as a constitutional matter, that racial preferences represent, for minorities, an unambiguous good.

The final reason the current Supreme Court is unlikely to endorse Blackmun's amorphous right of "political participation" is that, the more you think about it, the more the theory unmasks itself as an argument against plebiscitary democracy itself. Remember that in the landmark gay rights case, Romer v. Evans, the Colorado Supreme Court had initially struck down the state's anti-gay-rights amendment as violating the "fundamental right to political participation" of gay voters. But the able lawyers for the plaintiffs, who realized the theory was a loser, urged the U.S. Supreme Court to affirm the decision on more convincing grounds; they recognized that the history of state constitutionalism is full of examples of popular initiatives designed by some groups (such as farmers) to stop other groups (railroads, plutocrats, creditors) from enacting their legislative programs. If taken seriously, Blackmun's conclusion--that "no state" may "disadvantage any particular group by making it more difficult to enact legislation in its behalf"--would invalidate much of the legacy of the Progressive movement, including the initiative process itself.

Like dinner guests that have overstayed their welcome, unconvincing Supreme Court opinions tend to linger long after their shortcomings have been exposed. The citizens of California will have to wait for several years, therefore, before the sensible successors of Harry Blackmun assure them they have a power that few would have thought to gainsay: namely, to forbid their state from discriminating on the basis of race or gender. In the meantime, President Clinton faces a decision of some moment: Does he, or does he not, believe that race and gender neutrality is itself unconstitutional? On the day Deval Patrick announced his resignation as assistant attorney general for civil rights, he said he was encouraged by lawsuits filed to test the constitutionality of ccri. Does President Clinton share this distressing view? Will Patrick's successor take a different position? It's hard to imagine a more revealing test of the president's constitutional vision as he begins his second term.