Judicial Blame Avoidance, Part 2

Yesterday’s post interpreted Mass v. EPA as a Supreme Court exercise in institutional blame avoidance. Today, as threatened, a second, more incendiary example: affirmative action in higher education. With the February 21 cert grant in Fisher v. University of Texas, the question has returned to the Court; it’s worth a quick look.

The precedents and their holdings are familiar. Justice Powell’s controlling opinion in Regents of the University of California v. Bakke (1978) held that universities may not use racial quotas or set-asides; however, they may use race as a “plus factor.” In the Michigan affirmative action cases, Gratz v. Bollinger and Grutter v. Bollinger (2003), the Court essentially reaffirmed that holding, adding a few wrinkles such as the elevation of “diversity” to the status of a “compelling” state interest. (Disclosure: I directed the law firm that instigated the Michigan cases, although I moved on before the Court decided them.)

The Bakke-Grutter rule is obviously a sham: you can always make the “plus factor” big enough to reach any pre-determined racial balance. What the rule actually means—or at any rate, what it signals to university administrators—is that quotas are okay, so long as you lie about them (for example, by making a show of “individualized” comparisons).

The cases share several additional characteristics. There’s the ostentatious pronouncement of a “strict scrutiny” standard of review, which the Court then conspicuously fails to apply. There’s the pathetic attempt to cover that open flank with outside-the-record expertise from trusted institutions (Harvard in Bakke, the U.S. military in the Michigan cases). There’s the craven effort to hit a political ”sweet spot”—the conflicted consensus of an electorate that doesn’t like quotas and preferences but also recoils at the prospect of “lily-white” elite institutions (an education blob canard, but let that slide).

And then, there is the obvious attempt to put distance between the Court and the on-the-ground consequences of its pronouncements. What one wants to know is, how much of a preference is too much? That question, the cases don’t answer. Institutions get to experiment at the outer perimeters of the Constitution—a practice the Court never tolerates in venues where it wants to boast and claim credit, such as core free speech. For example, Grutter’s “diversity” interest promptly migrated from the education context for which it was designed into public employment (see, e.g., Petit v. City of Chicago, 352 F.3d 1111 (7th Cir. 2003)). In Fisher, the University of Texas seized on the rationale to defend preferences as a means of producing diversity at the classroom level (and good luck with that). Should we attribute those escapades to the Supreme Court’s implicit encouragement, or to institutional overreach and bad faith? Stay tuned for the next we-wash-our-hands ruling.

What strikes me as most problematic about the Court’s posture is that we have more than enough institutions that punt, obfuscate, and shift and avoid blame. We have allowed politicians to construct a vast web of mechanisms that facilitate the practice. The administrative state is one;  “cooperative” federalism is another. In its better moments, the Supreme Court has recognized the need for disciplining, accountability-forcing rules: the anti-commandeering rule of Printz v. United States, for example, or the “clear statement” rule. (For a learned exposition see The Upside-Down Constitution, Ch. 15.) Those rules—and we need more of them—would gain credibility if the institution that generates them could hold itself to a higher standard and say, when it matters: this one is on us.