Grutter Clutter

Michael Klarman is a law professor at the University of Virginia who has written widely and well on race and the law. His new book, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, will be published by Oxford University Press in December. His recent assessment of Grutter in the Chronicle of Higher Education, however, is troubling in several of its assumptions and arguments. (Link requires subscription)

His main argument — that Supreme Court decisions aren’t as important as most people think, and that in the long run Grutter may not prove to have had much impact — may well be true, as is his rather banal assertion (hardly worth being called a “paradigm of constitutional interpretation”) that “that Supreme Court decisions generally reflect the social and political context of the times.”

Klarman cavalierly endorses the widespread acceptance of the view that a contrary opinion in Grutter would have been routinely disregarded, which is a main reason he believes all the opinion did was legitimate the status quo. It will not substantially enhance the practice of racial preference, just as as a contrary opinion would not have substantially inhibited it. Ho hum.

Again, this reading of current and probable practices may well be correct, but I believe some of Klarman’s interpretation of why this is so is off the mark. First, I think he misinterprets contemporary multiculturalism.

In the early 21st century, multiculturalism and multiracialism have become entrenched features of American life. Predicting such a development even 20 years ago would have been difficult. Yet probably in response to the growing racial and ethnic diversity of the nation, and possibly in response to globalization forces as well, most Americans have come to accept that all important social, political, and economic institutions should “look like America.” Friend-of-the-court briefs filed in the University of Michigan cases symbolized the extent to which even relatively conservative American institutions such as Fortune 500 companies and the U.S. military have embraced this multiracial vision. Those briefs warned the justices that America’s economic success and military security depended on the continued use of affirmative action.

The Fortune 500, even when re-inforced by the Joint Chiefs of Staff and the massed ranks of university professors and administrators, are not “most Americans.” It is certainly true that most Americans think diversity is a good thing; it is not true, as demonstrated by popular votes in Washington and California and by the consistent results of national polls, that most Americans believe that diversity justifies discrimination on the basis of race. Klarman repeats that “Grutter reveals how deeply entrenched the notion that all of our social, political, and economic institutions should “look like America” has become,” but this is only partially true. That notion has indeed become entrenched in universities, the elite media, and the Fortune 500, but it is not entrenched among “most Americans,” who continue to believe, if polling data can be believed, that people should be judged without regard to race. Klarman writes that “[p]ublic opinion has always been divided on affirmative action,” but I don’t believe I’ve ever seen a measure of public opinion that reported majority preference for racial preferences. (Surveys that measure only attitudes about “affirmative action” are worthless, because “affirmative action” is a blank slate.)

Klarman is similarly confused, I believe, about what conservatism is and what conservatives believe. Or rather, he assumes that conservatives are all alike.

But O’Connor is a classic conservative, who values preservation of the status quo….

That a justice as conservative as Sandra Day O’Connor would validate an affirmative-action plan that weighed race as heavily as did that of the University of Michigan Law School is striking…. Justice O’Connor’s conservative commitment to preserving the status quo trumped her ideological aversion to race-conscious government remedies.

As I have noted recently in discussing George Will, preserving the status quo plays an important role in some strains of conservative thought, but this strain is not necessarily “classic.” An equally strong strain places a higher value on fidelity to certain bedrock principles. Klarman’s definition implies that a good and true conservative is one who leaves progressive changes undisturbed, simply because they now exist. That definition does fit some conservatives, but, as convenient as it would be for liberals, it does not fit us all.

Klarman purports to discuss how history can throw light on the influence of Supreme Court decisions, but his own history is misleading. Consider:

Justices’ votes in affirmative-action cases have followed fairly predictable political lines. The three most conservative justices — William H. Rehnquist (the chief justice), Antonin Scalia, and Clarence Thomas — have never voted to sustain an affirmative-action plan but rather have insisted on a nearly absolute ban on government race-consciousness. The four most liberal justices — John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer — have rarely (or never) voted to invalidate an affirmative-action plan.

Again, true, but the time line is severely constricted. Missing from this analysis is recognition of the fact that in Bakke the California Supreme Court, which then had the reputation of being the most liberal state court in the country, ruled against racial preference, or that one of the most eloquent opponents of racial preference on the Supreme Court in the 1970s was its most liberal justice, William O. Douglas. Klarman recognizes that “O’Connor probably changed her mind about affirmative action over the past two decades,” but he doesn’t acknowledge that liberal opinion in general reversed itself over the same period.

Klarman, in short, confuses elite liberal opinion with “most Americans,” to the detriment of his otherwise interesting analysis.