Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

Minimalist Wisdom Prevails on Affirmative Action

Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

Minimalist Wisdom Prevails on Affirmative Action

Article excerpt

In Monday's affirmative action case, Fisher v. University of Texas, the most important thing to know may be the U.S. Supreme Court's vote: 7 to 1. With the exception of Justice Ruth Bader Ginsburg, every member of the court joined Justice Anthony Kennedy's majority opinion. (Justice Elena Kagan recused herself.)

Affirmative action has long divided the justices as well as the nation, and the remarkable near-unanimity of the court speaks volumes. In a little-noticed speech in 2006, Chief Justice John Roberts argued in favor of unanimous decisions from the court, suggesting that unanimity leads to minimalist rulings.

The basic idea is that if a diverse group of justices is able to agree, their opinion is more likely to steer clear of intense controversy and avoid the largest theoretical disputes.

For 35 years, the law governing affirmative action at public universities has been relatively settled. In Regents of the University of California v. Bakke, decided in 1978, Justice Lewis Powell cast the decisive vote. He concluded that the Constitution doesn't impose a ban on affirmative-action programs but universities must avoid quota systems, and that they are permitted to consider race as a "factor" if they can demonstrate that doing so is necessary to achieve the educational benefits that come from a diverse student body.

In 2003, a sharply divided court essentially endorsed Justice Powell's reasoning. The court's majority held that the Constitution allows flexible, quota-free affirmative-action programs, but also that judges must apply "strict scrutiny" to assess whether such programs are both necessary and narrowly tailored to achieve a compelling educational goal.

This approach rejects two more extreme positions. Some people, including Justices Antonin Scalia and Clarence Thomas, believe the Constitution calls for color-blindness. They insist that no public institution may take into account the race of a student or applicant.

Others, including Justice Thurgood Marshall, have argued that the Equal Protection Clause was designed to eliminate a system of racial subordination. In their view, the idea of color-blindness is not part of the Constitution, and judges should uphold affirmative- action programs. …

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