Souter On (And Off) Obfuscation

A commenter on this post below raised a strong objection to my awarding the DISCRIMINATIONS chutzpah award to Justice Souter for his selective objections to obfuscation. Souter, he notes, voted consistently in Gratz and Grutter.What follows began as a reply comment, but then I thought it merited being elevated to a full-fledged post.

You have a good point, although at the moment I’m only willing to grant that you’re half right. I thought — and to a slightly lesser extent, still think — that Souter earned his chutzpah award because of the biased inconsistency of his outspoken objection to obfuscation — he refuses to criticize O’Connor for the exact same thing for which he criticizes those who object to racial preference — not because of any inconsistency in his votes in Gratz and Grutter. Indeed, he is even more consistent than you say here, since he’s never met any racial preference to which he objects.

I’ve now re-read his Gratz dissent, and there is enough there for me to qualify my award enough to say that you’re half right:

The very nature of a college’s permissible practice of awarding value to racial diversity means that race must be considered in a way that increases some applicants’ chances for admission. Since college admission is not left entirely to inarticulate intuition, it is hard to see what is inappropriate in assigning some stated value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race. Justice Powell’s plus factors necessarily are assigned some values. The college simply does by a numbered scale what the law school accomplishes in its “holistic review”….

This passage has the virtue of frankly acknowledging that “race consciousness” is meaningless without race preference, and Souter does go on to criticize the “deliberate obfuscation” of other plans, compared to the “the college’s forthrightness in saying just what plus factor it gives for membership in an underrepresented minority….”

But note well: the “deliberate obfuscation” Souter criticizes is not the “holistic” hooey of the Michigan law school, or O’Connor’s being taken in by it, but rather the percentage plans of Texas and Florida that achieve minority representation through race-neutral means. The award, in short, was based on his highly selective objection to obfuscation.

While I’m here let me note one other problem I have with Souter on race, as revealed clearly in his Gratz dissent. The only racial discrimination that he is willing to regard as unconstitutional is discrimination that results in total exclusion of the ability to compete for a valued position. He agrees that fixed quotas, as in Bakke, are unacceptable because they deprive members of all un-preferred groups of the ability to compete for the set aside positions. But no handicapping system, such as Michigan’s giving minority applicants 20 points out of 150 necessary, is unacceptable so long as it does not absolutely deprive members of the disfavored groups of the possibility of winning a position. Thus Souter’s bar against discrimination is low enough that even 30 or 40 or maybe even 50 point bonus points for preferred minorities would pass muster so long as they did not actually bar all of the non-preferred, as long as it remained theoretically possible for one of the non-preferred to amass enough points for selection. Really. Look:

Nor is it possible to say that the 20 points convert race into a decisive factor comparable to reserving minority places as in Bakke. Of course we can conceive of a point system in which the “plus” factor given to minority applicants would be so extreme as to guarantee every minority applicant a higher rank than every nonminority applicant in the university’s admissions system, see 438 U.S., at 319, n. 53 (opinion of Powell, J.). But petitioners do not have a convincing argument that the freshman admissions system operates this way. The present record obviously shows that nonminority applicants may achieve higher selection point totals than minority applicants owing to characteristics other than race, and the fact that the university admits “virtually every qualified under-represented minority applicant,” App. to Pet. for Cert. 111a, may reflect nothing more than the likelihood that very few qualified minority applicants apply, Brief for Respondents Bollinger et al. 39, as well as the possibility that self-selection results in a strong minority applicant pool. It suffices for me, as it did for the District Court, that there are no Bakke-like set-asides and that consideration of an applicant’s whole spectrum of ability is no more ruled out by giving 20 points for race than by giving the same points for athletic ability or socioeconomic disadvantage. [Emphasis added]

If this dissent is to be believed (and I admit, it is so bizarre that I do have a little trouble believing it), Souter would regard a policy as unconstitutional that reserved two places in a freshman class (presumably no matter how large the class) for minorities only, but would smile benevolently on a policy, like Michigan’s, that gave all members of preferred races an enormous advantage in competing for every position, so long as the enormity of preference was not so “decisive” that not one of the non-preferred could be selected.

Actually, now that I think about it, I believe there is an inconsistency here as well. Since for Souter race as a classifying category seems indistinguishable from “athletic ability or socioeconomic disadvantage,” what authority does he find for the Court to impose even that slight limitation on racial discrimination? Given the extreme degree of discrimination he believes the 14th Amendment allows, it could hardly be that.