Rubenfeld, Jed, The Yale Law Journal
Affirmative action is so burning it's boring. Why? Partly because so much of what one sees and hears on the subject smacks of hypocrisy or speaking in code. Exhibit A: the name of California's affirmative-action-killing referendum, the "Civil Rights Initiative." Exhibit B: the term "affirmative action." Exhibit C: "I oppose affirmative action because it's harmful to minorities." Exhibit D: "Diversity is not counter to merit; it's an aspect of merit." Exhibit E: "[T]he fact that he is black and a minority has nothing to do with this in the sense that he is the best qualified at this time."(1)
This Essay rethinks the constitutionality of race-based, governmental affirmative action measures. There are, I know, a thousand essays on the same topic already. I make one promise: Readers who persevere will learn something new. First, although it is a matter of public record, most lawyers and judges are unaware that Congress in the 1860s repeatedly enacted statutes allocating special benefits to blacks on the express basis of race (and I am not referring to the well-known Freedmen's Bureau Acts,(2) which did not rely on express racial classifications). Accordingly, to be true to their principles, two of the five Justices in the prevailing anti-affirmative action majority--Justices Scalia and Thomas, whose commitment to original understandings and practices is also a matter of record--should drop their categorical opposition to race-based affirmative action measures.
Second, strict scrutiny doctrine, as it has been applied to affirmative action, can no longer survive strict scrutiny. I don't mean this statement figuratively. I mean that strict scrutiny doctrine, understood as it has been in the recent affirmative action cases, can no longer satisfy its own doctrinal requirements. Current affirmative action law may be the first instance in our jurisprudence of a constitutional doctrine unconstitutional under itself.
Finally, and most important, the Court's recent affirmative action decisions have consummated a remarkable but unremarked-upon transformation in the entire analytic structure of heightened scrutiny doctrine. One powerful function of strict scrutiny has always been that of "smoking out" invidious purposes masquerading behind putatively legitimate public policy. But under today's affirmative action doctrine, strict scrutiny has become altogether different. It has become a cost-benefit test measuring whether a law that falls (according to the Court itself) squarely within the prohibition of the equal protection guarantee is justified by the specially important social gains that it will achieve.(3)
This shift in the use and understanding of strict scrutiny is momentous, not only for equal protection law, but for every field of constitutional law in which the compelling state interest test figures. Or rather it would be momentous, if it really were the law. But it cannot be. Strict scrutiny cannot serve as a general escape hatch through which reasons of state may trump acknowledged constitutional injuries. As a smoking-out device, heightened scrutiny is sensible. As a cost-benefit justificatory test, it is indefensible. Or so I will argue.
This argument, however, will not decide affirmative action's constitutionality. Part of the problem with current doctrine is its effort to pack far too much of the difficult work of equal protection analysis into a determination of the appropriate "standard of review." Straightening out strict scrutiny in the affirmative action cases can only strip away a certain false doctrinal mesh, leaving exposed the contending claims of color-conscious and colorblind justice.
But the debate over colorblindness in constitutional law, whose thrusts and parries are so well known, will raise very different questions when the cost-benefit approach of current doctrine is systematically stripped away. For example, the Justices who have found against affirmative action programs repeatedly have done so on the ground that affirmative action threatens inadvertently to entrench racial thinking and to stigmatize minorities. …