More On “Passive Judicial Activism”

Continuing the discussion begun, at some length, just below (“Passive Judicial Activism”), it does seem to me that contemporary responsible, restrained, “moderate” liberals (as well as some liberals who are less responsible, restrained, moderate), tend to see federal judges, especially Supreme Court justices, primarily as politicians who don’t have to worry about getting elected.

Nowhere is this tendency more pronounced than in the writing of Jeffrey Rosen. His latest book, for example, is The Most Democratic Branch: How Courts Serve America, with its curious argument that the branch of government that is most democratic is the one that is least responsible to the voters. An equally good example was Rosen’s article in the New York Times Magazine last week, “School Colors,” which quite explicitly urges Chief Justice Roberts to take what Rosen regards as a wise, and hence political, approach to the racial school assignment cases from Seattle and Kentucky in the coming term.

Apparently unmindful of the debate raging in Michigan, Rosen argues that a good part of the reason “affirmative action” is no longer a divisive political issue is because of the wise, political moderation of Justice O’Connor.

In an important decision written by Justice Sandra Day O’Connor, the court held in 2003 that affirmative action in public-university admissions was constitutional because of the educational and social benefits of diverse classrooms.

Rosen urges Chief Justice Roberts to reach a similar result in the racial assignment cases, noting tellingly that “the most politically effective Supreme Court decisions aim to calm partisan disagreements rather than inflame them.”

One can of course quarrel with this conclusion (did Brown calm Southern agitation over race? Did Judge Frank Johnson’s insistence on integration in Alabama reduce opposition to it?), but much more interesting, I think, is the ease with which contemporary liberals like Rosen assume that courts should use overtly political criteria in deciding cases.

If Rosen and O’Connor are right in arguing that “affirmative action in public-university admissions [is] constitutional because of the educational and social benefits of diverse classrooms,” then another judge — say a Justice Alito or a Chief Justice Roberts — would also be right in holding affirmative action unconstitutional if they found that the costs in racial divisiveness and abandonment of the “without regard” principle outweighed the asserted but unproven benefits of “diversity.” Indeed, if the principle of colorblind non-discrimination (and not just the principle but the legislation embodying it) is porous enough to allow exceptions every time a judge finds some “social benefits” in doing so, it is hard to imagine a convincingly principled argument against a decision holding, say, that, although every candidate must be evaluated in a “holistic”manner where race is “only one of many factors,” the “educational and social benefits” (less rancorous divisiveness, etc.) of there not being a “critical mass” of minorities justifies a scale-tipping preference for whites and Asians. Or, for that matter, against another hypothetical decision that found that the “social and educational benefits” of a university’s affirmative action policy were insufficient to justify the preferences it employed because they resulted in the admission of too many Mexican-Americans and not enough Cuban-Americans or too many Jews and not enough Catholics.

There is also, to be polite, a glaring irony in the current liberal inclination to rely on judges’ views of “social benefits” rather than on a bright-line principle of non-discrimination, what Rosen dismissively calls the “extreme colorblind position.” (Of course, I think he finds any colorblind position “extreme.”) If I weren’t so polite I would call it a glaring inconsistency rather than an irony.

Liberals who complain about conservative judicial activism want judges to defer, except in extreme cases, to the considered judgments of the political branches (Rosen: “there’s something unseemly [and not very conservative] about unelected judges second-guessing locally elected officials on matters of educational policy”). But weighing “the educational and social benefits” of affirmative action is an inherently legislative judgment. Moreover, as I argued in my recent post (linked above) on this topic, deciding that those benefits outweigh the costs of violating the “without regard” principle of colorblind non-discrimination, as Powell did in Bakke and O’Connor did in Grutter, is itself “second-guessing” the judgment of the Congress that passed and the president who signed the 1964 Civil Rights Act, which explicitly banned racial favoritism.

As I argued before, ignoring legislation or holding that it doesn’t mean what it says is just as “activist” as declaring legislation unconstitutional.