Un-Constitutional … But O.K., Says O’C.

Eugene Volokh’s recent post castigating the Nevada Supreme Court (“one of the most appalling judicial decisions I’ve ever seen”) for ignoring the Nevada Constitution has received much attention, all of it deserved. Less noticed, but equally deserving of attention, is a similar, and similarly appalling, passage in Justice O’Connor’s Grutter opinion:

We are mindful, however, that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” … Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, concedes that all “race-conscious programs must have reasonable durational limits.” … [Citations omitted]

Thus Justice O’C recognizes that doing away with “all governmentally imposed discrimination based on race” is a “fundamental … principle” at the “core” of the 14th Amendment, but she concludes that it is O.K. to violate it for 25 years or so, maybe longer if the discrimination is “still necessary.”

How reassuring that we have a Constitution and a vigilant, independent judiciary to protect our rights.

Perhaps the best reply to the Grutter court’s acceptance of 25 more years of violating the “fundamental equal protection principle” came from Justice Murphy in another case where the Supremes vindicated racial discrimination, Korematsu v. United States.

Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States.

Recent and consistent polling data suggests those principles may be more thoroughly embraced by the American people than by a majority of their protectors on the Supreme Court.

ADDENDUM – File this under the “Great Minds Work Alike” (But Some Work Faster Than Others) department. I have just seen, thanks to Howard Bashman, that Terry Eastland of The Weekly Standard has also recently discussed Justice O’C's non-binding “durational requirement.”

Say What? (2)

  1. Bruce Rheinstein July 14, 2003 at 9:47 am | | Reply

    Perhaps O’Connor should just write formal sunset provisions into her opinions.

    “The 14th Amendment mandates racial policy X until July 31, 2028, after which it mandates racial policy not-X.”

  2. nobody important July 14, 2003 at 12:18 pm | | Reply

    Hate to bring it up, but it is somewhat reminicent of the immoral compromise that was struck to get the Constitution ratified, that is, the decision to ‘defer’ the issue of slavery for a similar time period. Granted, we had no consitituion at the time and were in grave danger of failing as a state (or confederation of states), but we did have inalienable rights. Right?

Say What?