An Essential Safeguard: Essays on the United States Supreme Court and Its Justices

By D. Grier Stephenson Jr. | Go to book overview

uphold an affirmative action plan when she finds that the government interest is compelling. She has strongly suggested approval of Justice Powell's position in Bakke that diversity in college and graduate admissions may sustain a racial classification, and she said that there may be other compelling justifications as well. But this does not mean that she will uphold them readily. She rejected a relatively strong reason in Wygant: the school board's desire to have a racial and ethnic distribution among its faculty to serve as role models for its students.

Probably more important, Justice O'Connor employs a balancing process even when remedying a prior legal violation, particularly in regard to the weight of the burden imposed on innocent individuals. Moreover, she seems especially adverse to fixed goals or quotas even in connection with remedying an egregious and persistent constitutional violation.

Last, one comes to the source of greatest uncertainty. When Justice White, in Bakke, approved an inflexible goal even though there was no prior deliberate discrimination by the Davis Medical School, advocates of affirmative action justifiably felt that they had a solid vote. But less than a decade later, in Sheet Metal Workers--a case involving a remedy for egregious and persistent deliberate discrimination--JusticeWhite found a fixed goal invalid. It is unclear whether his objection was based on his conclusion that the relief involved a "strict racial quota," or on his judgment that the context of the remedy would require some nonminority workers to be expelled from the union, thus amounting to a firing. But his subsequent objection to a fixed remedial quota in Paradise and his strong distaste for layoffs may mean that he has shifted his place on the spectrum to the right of Justice O'Connor, and perhaps even to the area occupied by Chief Justice Rehnquist (and Justices Scalia and Kennedy).

In conclusion, the purpose of this chapter has not been to reveal the Court's undisclosed answers to most of the important constitutional questions concerning the validity of affirmative action programs or other remedial racial classifications. Those who presently claim that there is clarity in this area (and some do) are either deluded or deluding. Rather, the effort has been to identify better the important pieces of' the puzzle. Now, with Justice Souter aboard, only the Court has the authority ultimately to fit them together.


NOTES
1.
402 U.S. 1 ( 1971).
2.
McDaniel v. Barresi, 402 U.S. 39 ( 1971); North Carolina State Board of Education v. Swann, 402 U.S. 43 ( 1971).
3.
416 U.S. 312 ( 1974).
4.
430 U.S. 144 ( 1977).

-143-

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An Essential Safeguard: Essays on the United States Supreme Court and Its Justices
Table of contents

Table of contents

  • Recent Titles in Contributions in Legal Studies ii
  • Title Page iii
  • Contents vii
  • Preface ix
  • 1: Introduction: The Supreme Court in American Government 1
  • Notes 32
  • 2 - Can Presidents Really Pack the Supreme Court? 37
  • Notes 48
  • 3 - The Office of Solicitor General: Political Appointee, Advocate, and Officer of the Court 51
  • Notes 63
  • 4: Conflict and Leadership on the U.S. Supreme Court: From Marshall to Rehnquist 67
  • Notes 79
  • 5: Justice Sandra Day O'Connor: An Assessment 81
  • Notes 95
  • 6: The Constitution and the Legacy of Justice William O. Douglas 99
  • Notes 117
  • 7: John Marshall Harlan: A Modern Conservative Justice 121
  • Notes 129
  • 8 - Affirmative Action and the Supreme Court 133
  • Notes 143
  • 9: Chief Justice Rehnquist and the Future of the Supreme Court 145
  • Notes 163
  • Selected Bibliography 165
  • Index 173
  • ABOUT THE CONTRIBUTORS 179
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