A Supreme Court Conversation
Dear Walter and Dahlia—
Walter's trenchant analysis makes it even more difficult for me to see in Justice Kennedy's opinion what I would like to see: the makings of a pragmatic but principled position between "color-blind Constitution" and "racial preferences forever."
(Justice O'Connor's halfhearted effort in Grutter to put a 25-year limit on such measures—now down to 21 years—is viewed with disdain by almost all who agree with today's four dissenters.)
And I certainly agree with Walter's point that the harm done by these programs to children (of all races) who lost out is dwarfed by the harm that was done to black children by racial apartheid.
But I am still hesitant to join the Walter-Dahlia consensus that these programs should have been upheld. Among my reasons:
- Like Kennedy, I hate the idea of having to tell an impressionable child, "Sorry, you're the wrong color to get the school you want"—no matter how benign the rest of the sentence might sound.
- It appears to me that the supposedly temporary and terribly corrosive chemotherapy of racial preferences and race-based policies are becoming more pervasive and entrenched in much of this country, in an era when they should be receding. We will never get beyond racism if we perpetuate "taking account of race."
- I see no stopping point in the dissenters' arguments for perpetuating race-based governmental policies. Those arguments also seem hard to reconcile with the collection of decisions since Bakke in which the justices have subjected racial preferences to "strict scrutiny" and struck some of them down.
- The decision sought by the dissenters might have fostered at least as much racial division and resentment as harmony.
- As a matter of cost-benefit analysis, these plans impose serious costs on some individuals while doing very little good for anyone even on their own terms, because they produce only a tiny amount of incremental integration.
- I think class-based plans would be work better.
But I need to reread these opinions (and maybe even the record) to figure out what I really think. For one thing, although everybody else seems to treat the Jefferson County and Seattle cases identically, the latter strikes me as far more flawed (and more pervaded by crude racial stereotyping) than the former. I reserve the right to move closer on further reflection to the positions that you have so eloquently advanced.
I have a less value-laden analysis of the probable impact of the decision, and the factual background, here.