Richmond
Affirmative-action Case Being Misinterpreted*
By
W. B. ALLEN
Justice
Sandra O’Connor’s opinion for the Supreme Court in Richmond vs. Croson
is remarkably consistent with her concurring 1987 opinion in Johnson vs.
Santa Clara County Transportation Agency. Yet in this year’s case she
overturned a minority set-aside program in the city of Richmond, while in the
former case she helped to uphold an affirmative action program which awarded a
preference in employment for women over men.
It
was not difficult for O’Connor to come up with such apparently different results,
for she has largely avoided arguments over the merits of affirmative action
policies and focused on the procedural requirements for imposing them.
Accordingly, not only does her Richmond opinion fail to declare affirmative
action unconstitutional, but it actually lays out the standards whereby
federal, state and local governments may qualify such programs in the eyes of a
majority on the court.
True,
for the Congress O’Connor offers virtual carte blanche, while for states and
municipalities she constructs an elaborate hedge-work designed to prevent
facile recourse to race-based public policies. On her grounds, a program such
as the Atlanta set-aside system, based on elaborate findings of racial
discrimination, will likely receive court approval, while the City of Pasadena’s
affirmative action program for Armenians will likely fall. The fact that
neither contemporary nor historical evidence of systematic discrimination
against Armenians can be produced means that such programs as Pasadena’s are regarded
more as old fashioned local government abuses of power than as legitimate attempts
to eliminate racism.
In
light of these reflections, we are well entitled to wonder why so much hullabaloo
has greeted O’Connor’s opinion, with liberals decrying it as an “attack” on
equal protection and some witless conservatives exuberating in it as a mortal
blow against racial preferences. It seems to me that neither side waited to
read the decision before pronouncing on it. Further, their pronouncement were
rather informed by the tone and language of Justice Marshall’s dissent than the
actual content of O’Connor’s opinion.
Marshall
was shrill: It is a step backwards! But based on the above analysis, it is
clear that O’Connor’s opinion rather strengthens than weakens affirmative
action, at least from the perspective of traditional civil rights groups. The
only way to account for Marshall’s view is to conceive that he has in sight
something beyond the literal implications of the decision. In order to force
state and local jurisdictions to toe the line, O’Connor introduced the language
of “strict scrutiny,” which in modern day jurisprudence bears all
the threatening importance that the language of “strict construction” once bore
for disputes over state-federal relations and the powers of the federal
government.
Marshall
knows that “strict scrutiny” has always been the first announcement of the
impending death of pet programs in public policy at any level. Thus he fears
more the future application of O’Connor’s precedent than the actual results of
the Richmond case. In short, Marshall’s shrill language was intended
rather for the ears of his brothers and sister on the court than as an accurate
representation to the public of the import of this case. That is the reason he
teased O’Connor by quoting her Johnson opinion against her Richmond
opinion and pretending a contradiction. He knows that for some new justice
(perhaps replacing himself), what is no contradiction in O’Connor will be in
fact a contradiction which “strict scrutiny” cannot endure.
One
reason Marshall cannot fear the actual results of the Richmond case is that he
knows that O’Connor’s argument, including the resort to “strict scrutiny” to
rein in localities, is derived from an essay by the very scholar who, working
as former President Carter’s assistant attorney general for civil rights,
successfully defended congressionally ordered minority set-asides 10 years ago.
Drew Days III, now a Yale professor, reviewed his work in the Fullilove decision
in an essay in 1987, concluding the court had been too gullible in accepting
his argument on behalf of the government and thereby had opened the door to
classical racial abuses by refusing to lay down strict rules for the adoption
of race-conscious remedies. Days argued, therefore, that affirmative action
itself would be endangered (as in the Armenian example) unless we restored a
healthy suspicion of state and local governments in this arena. Thus, using the
language of conservatism, Days succeeded to strengthen the liberal agenda.
The
idea in restricting localities is to safeguard against a resurgence of malign race-consciousness no matter who
local office-holders are. That, in turn, strengthens the hand of Congress in
ordering race-conscious remedies seeking to alleviate historical discriminations.
Conservatives
who have thought this decision meant otherwise have over-reacted, and in doing
so lost an opportunity. One wonders sometimes whether conservatives are not
constitutionally incapable of mastering the nuances of democratic politics. For
nothing can be more certain than that, if Richmond vs. Croson had been
such a decision as conservatives imagined, their task would have been to decry
it as the opposite, as a renewed defense of affirmative action.
W.B.
Allen is chairman of the United States Commission on Civil Rights.