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Tribal justice
National Review, April 24, 1987
Tribal Justice
SWIFT'S FAMOUS description of lawyers comes tomind as one reads Justice William Brennan's tortuous majority opinion upholding the legality of a Santa Clara, California, affirmative-action plan. To be sure, there is something to be said for affirmative action, and it should be permitted as a voluntary matter in private institutions. The technical problem is that it's against the law.
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If, that is, the law means anything. In the case athand, Santa Clara County hired a woman in preference to a man who had scored slightly higher on the oral employment test they both took. Title VII of the 1964 Civil Rights Act plainly forbids an employer to "limit, segregate, or classify his employees or applicants . . . in any way which would deprive or tend to deprive any individual of employment opportunities . . . because of such individual's race, color, religion, sex, or national origin.' (Emphases added.) Only a lawyer could find anything equivocal in that.
Brennan's opinion was framed in terms of "objectives'and "goals,' which for him evidently override the mere letter of the law. Taking race and sex "into account,' he noted, is "consistent with Title VIT's objective of "breaking down old barriers'' of racial and sexual discrimination. That was indeed, from one angle, the concrete objective of the law. But this does not mean that the actual wording of the law may be set aside, any more than the Constitution's goal of "establish[ing] justice' entitles a judge to strike down as unconstitutional any law he may deem unjust.
From another angle, the "objective' of Title VIIwas to protect the individual from discrimination. It identified the protection of the individual as such with social justice. But the Court has now endorsed political tribalism in the name of social justice, at the expense of justice to individuals.
There being no National Association for the Protectionof White Males, white males will bear the brunt of this discrimination, with the Court's blessing. As Justice Antonin Scalia said in his dissent: "The irony is that these individuals--predominantly unknown, unaffluent, unorganized--suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent.' Just so. Social justice will be reserved for those with tribal affiliations and accredited victim status, proving once more that under the liberal regime, you have to have a lot of clout to be a victim. Being an individual isn't enough.
COPYRIGHT 1987 National Review, Inc.
COPYRIGHT 2008 Gale, Cengage Learning
