was being given a license by Justice Brennan to discriminate at will so long as it thought its discrimination was "benign." As Justice O'Connor wrote for the dissent:
[h]istory should teach greater humility. Untethered to narrowly confined remedial notions, "benign" carries with it no independent meaning, but reflects only acceptance of the current generation's conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable. The Court provides no basis for determining when a racial classification fails to be "benevolent." 91
Unthinkingly, the judicial activism of Justice Brennan and the Court's contortions to allow some racial preferences some times, have led us away from the color-blind path embodied in the fourteenth amendment, and articulated by Justice Harlan in his Plessy dissent rejecting the doctrine of "separate but equal." It is good to remember that "separate but equal" at its core was built on the very same specious notion that some racial preferences are benign. The Plessy majority, like the Brennan Court in Metro Broadcasting, rejected the assumption that racial division--separateness--yields inferiority or discrimination. "If this be so," insisted the Plessy Court, "it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." 92 As Justice Kennedy wrote in his separate dissent in Metro Broadcasting,
It]he history of governmental reliance on race demonstrates that racial policies defended as benign often are not seen that way by the individuals affected by them. [Racial preferences]... impose "stigma on its supposed beneficiaries," and "foster intolerance and antagonism against the entire membership of the favored classes." 93
The Court has still not found its way in matters of civil rights. It is not for lack of sound guidance from William Bradford Reynolds. Against tremendous odds and at great personal cost, Brad Reynolds, like Harlan before him, championed the principle that "[o]ur Constitution is color- blind, and neither knows nor tolerates classes among citizens."