In Defense of Deference
Fuentes-Rohwer, Luis, Charles, Guy-Uriel E., Constitutional Commentary
For my part, as I went away, I reasoned with regard to myself: "I am wiser than this human being. For probably neither of us knows anything noble and good, but he supposes he knows something when he does not know, while I, just as I do not know, do not even suppose that I do. I am likely to be a little bit wiser than he is in this very thing: that whatever I do not know, I do not even suppose I know." (1)
You want the death penalty? Persuade your fellow citizens [via legislation or by amending the Constitution].... You don't want abortion? Persuade them the other way.... Judges have no more capacity than the rest of us to determine what is moral. (2)
In late October, 1997, University of Michigan students unable to gain admission to its undergraduate school filed a lawsuit in federal court against the University. The plaintiffs maintained that the infusion of race into the admission process violated their rights under the Fourteenth Amendment. (3) A few days later, while answering general questions about the case, and specifically about the University's admission process, University President Lee Bollinger remarked that "[t]his [suit] is a campaign to reverse the constitutional decision supporting higher education's efforts to diversify." (4) Most appropriate to our general inquiry, the President stated that "I think inevitably the Supreme Court will and must speak to this issue." (5)
This was a remarkable prediction, on two fronts. First, the modern affirmative action (6) controversy presents one of the most important and vexing questions of social policy in the last quarter century. And the Constitution does not offer clear guidance for resolving this difficult question, if any at all. (7) Hence, this issue appears to be the perfect candidate for a properly democratic resolution, at the hands of those to whom we entrust such matters. (8) Generally, one would suppose that complex questions of social policy should be resolved no other way.
And yet, secondly, President Bollinger proved to be deadly accurate. This last Term, in the Michigan Cases, (9) the Supreme Court offered its constitutional views about the use of race in higher education. Its approach was rather surprising. Before the Court decided the Michigan Cases, and as a direct result of the Court's mechanical approach to race conscious measures, the resolution of these cases appeared pre-ordained. First, the Court would assert that race had in fact been used in admission decisions. Indeed, the University admitted as much. As such, the Court would apply its strict scrutiny test, and would demand not only that the state assert a legitimate and compelling interest, but also that the means in question be narrowly tailored to these purported ends. The Court would then offer its view about the myriad harms of racial classifications, (10) after which it would conclude that race may not be used by admission officers except in an extremely limited set of circumstances that no set of facts would ever meet. In keeping with its recent cases addressing the use of race in districting for example, the Court might also choose to apply its "predominant factor" test; (11) it would matter little, of course, as the Court would likely invalidate the programs in question under either test, by a five-to-four vote, with Justices O'Connor and Kennedy at the center of the storm. This was the ultimate outcome anticipated by most court-watchers including the Hopwood Court (12) and the Michigan District Court. (13)
In a series of surprising moves, the Court discarded the script. In the law school case, Grutter v. Bollinger, a Court majority endorsed Justice Powell's view in Bakke that the goal of diversity in college admissions "can justify the narrowly tailored use of race in selecting applicants for admission to public universities." (14) As far as holdings go, this one is quite unremarkable. Far more interesting and of greater significance is the way the Court arrived at this conclusion. …