Courting trouble - Supreme Court affirmative action cases

National Review, July 10, 1995

SUPREME Court decisions in two affirmative-action cases mirrored the opinions of politicians of both parties. Judges and lawmakers know that something has spoiled in the refrigerator, but they can't bring themselves to clean it up.

Adarand Constructors v. Pena was a case involving minority set-asides in federal transportation projects. One way or another, the Federal Government steers $14.4 billion a year -- 8.3 per cent of federal procurement -- to DBEs, or disadvantaged business enterprises: firms owned by minorities or women. In Missouri v. Jenkins, the Court reviewed the public-school system of Kansas City, Mo., which might be called systemic affirmative action. For nearly a decade a federal district judge has commanded the state to spend $200 million a year on the schools of the inner city, to make them equal to the schools of the suburbs.

In each case, four Justices -- Stevens, Ginsburg, Breyer, and David He-Did-It-Again -- voted to maintain the status quo. Justices Scalia and Thomas wrote concurring majority opinions, calling for a clean slate. "There can be no such thing as either a creditor or debtor race," wrote Justice Scalia of Adarand Constructors. "As far as the Constitution is concerned," wrote Justice Thomas, "it is irrelevant whether a government's racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged." On Missouri v. Jenkins, Thomas was even more scathing. Affirmative action in education means that "blacks, when left on their own, cannot achieve. To my way of thinking, that conclusion is the result of a jurisprudence based upon a theory of black inferiority."

But the majority of the majority -- Chief Justice Rehnquist and Justices O'Connor and Kennedy -- would only urge the race-levelers to be more cautious. Racial "qualifications," wrote Justice O'Connor in Adarand Constructors, "are constitutional only if they are narrowly tailored measures that further compelling governmental interests." Chief Justice Rehnquist, in Missouri v. Jenkins, ruled that the rogue district judge was not applying "the appropriate test," to evaluate the success of his edicts, but Rehnquist's decision did not order his educational fiefdom to be dismantled. In other words, the majority held that reverse discrimination is a bad thing, unless it is done very carefully. It was the equivalent of installing yellow lights on a street that has been taken over by drag-racers.

The judges were echoed by the pols. President Clinton has been trying to find a way of seeming to give the issue a second thought, without actually thinking about it. Newt Gingrich, meanwhile, signaled to Republican reformers, such as Representative Charles T. Canady (R., Fla.), that he was inclined to "hold hearings, but not necessarily to move quickly." Which means that the decision will be taken by the voters. California will have a referendum on affirmative action in 1996; other states will follow. It is only a matter of time before the congressional elections will in effect become referenda, to be decided by an increasingly fed-up majority. If the GOP doesn't enact the majority's sense of justice -- which is also the Constitution's -- the electorate will find other agents of its will.