Thinking About an Agenda for a New Supreme Court, Part II

By Mark Tushnet

The first post on this topic briefly discussed what a new Supreme Court might do about campaign finance regulation. I suggested that the best course would be to go back to the beginning, rather than try to work within the framework developed over the past forty years. Doing so would allow a new Court both to eliminate much of the doctrinal complexity in the field and, far more important, to place the constitutional analysis of campaign finance regulation on a firmer footing.

Something similar might be done about affirmative action. Ever since Bakke, the constitutionality of affirmative action has turned on the argument that sometimes affirmative action can promote a valuable diversity in the institutions where it occurs. But, really, that wasn’t the motivation for affirmative action in the first place, nor is it, I think, the central motivation for those who support affirmative action today.

At the outset affirmative action was a tool for several goals, diversity perhaps among them but low on the list. Affirmative action was sometimes seen as a way of addressing the continuing effects of past discrimination, not by the institutions adopting affirmative action programs, but by other institutions; as it was sometimes put, affirmative action sought to overcome the continuing effects of past societal discrimination. Further, advocates for affirmative action focused not only on the past but on current societal discrimination; affirmative action was a way of reducing the effects of that discrimination as well. And, finally, affirmative action was defended as a tool for moving in the direction of racial justice — a concern for distributive justice.

Relying on what Alan David Freeman called the “perpetrator” perspective, Justice Lewis Powell’s controlling opinion in Bakke, which shaped affirmative doctrine thereafter, rejected all those possible justifications for affirmative action. His core argument, sharpened later by Justice Scalia, was that in general the institutions that adopted affirmative action programs hadn’t done anything wrong (recently), nor had those whose opportunities for some jobs or educational experiences were adversely affected by affirmative action programs. Without a wrong, there was nothing to remedy.

The diversity rationale crawled out the wreckage, and went on to a robust life in the law of affirmative action. Proponents of affirmative action may have believed in the diversity rationale from the outset, thinking only that it was less important than other rationales, but with the law developing as it did, they became firmly committed to defending affirmative action as a mechanism for promoting diversity. The diversity rationale has shaped essentially all the mainstream discussions of affirmative action since it emerged.

A new Supreme Court could, as I suggested about campaign finance regulation, go back to the beginning and treat addressing past or current discrimination or distributive justice as sufficient constitutional justifications for affirmative action. Justice Sotomayor’s opinion in Schuette certainly points in that direction.

There are, though, two difficulties in attempting to do so. Nearly everyone who supports affirmative action does not believe that every affirmative action program is constitutionally permissible. Defenders of affirmative action might accept rigid numerical quotas, for example, but only if the quotas were small relative to the class size or the employment force. As with campaign finance regulation, the narrowing of doctrinal options has meant that proponents of affirmative action have not had the opportunity to articulate the doctrine they would use to allow but limit it.

There is one response, offered by John Hart Ely relatively early in the debates over the constitutionality of affirmative action: We could trust a political process in which the direct beneficiaries of affirmative action programs are inevitably going to be minorities (or coalitions of minorities). A majority that doesn’t directly benefit from affirmative action is unlikely to authorize programs whose scope would be troublingly broad.

Then, though, the second difficulty arises. It is symbolized by the Schuette case itself. The political impulse favoring affirmative action has weakened quite substantially. That suggests that a new Supreme Court will have few opportunities to rethink the very basis of affirmative action doctrine. Still, the political changes that would bring a new Supreme Court into existence — the election of a Democratic president who would make new appointments to the Court — might lead to the revival of affirmative action in the political arena, and that might be enough to let a new Court begin the incremental development of a new law of affirmative action.

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