The Political Significance of Legal Ambiguity: The Case of Affirmative Action
Bybee, Keith J., Law & Society Review
During the past 20 years, the American politics of race has been characterized by fundamental disagreements over the legitimacy of racial preferences. I trace the development of these disagreements within the Supreme Court's jurisprudence of affirmative action. I argue that the content and endurance of the Court's ambiguous jurisprudence stems from the particular politics of constitutional adjudication. More specifically, I argue that the overarching task of the modern Court is to justify its actions against a baseline of interestgroup politics. The uncertain logic of affirmative action creates a position for the Court within the group process, meeting the judicial challenge of self justification even as it leaves the ultimate validity of racial preferences open to question.
With the exception of the early years of its existence, when no official reporter of judicial decisions existed and no requirements for filing judicial decisions were in place, the Supreme Court has always rendered its major decisions as written opinions (Currie 1981 ) . For students of the Court, the structure and coherence of these written opinions have furnished important indicators of institutional performance. Conventional legal scholars, for example, have typically viewed poorly reasoned opinions as an institutional failure, a sign that members of the Court have not articulated and defended the neutral principles necessary to secure the rule of law (Wechsler 1959; Peretti 1999:11-35). Political scientists, on the other hand, have usually accepted inconsistencies within and between opinions as inevitable institutional outcomes, clear evidence that the Court is a political body driven by the conflicting policy preferences of its members (Segal & Spaeth 1993; Epstein & Knight 1998).
In this article, I examine the Supreme Court's affirmative action decisions, a body of opinions shot through with unresolved tensions. I find that this tangled set of cases is not fully explained by either the standard legal or political science approaches. As a result, I argue that the effort to understand the ambiguities of affirmative action requires a different kind of inquiry, focused on the pattern of political ideas that undergird contemporary constitutional adjudication.
My argument proceeds in three sections. In the first section, I trace the central tensions in the Court's affirmative action decisions back to University of California Regents v. Bakke ( 1978) . From a conventional political science perspective, the endurance of Bakke's incongruities may be explained in terms of individual judicial preference: for the past 20 years, Justices with the critical votes in affirmative action decisions have been committed to compromise. In turn, from a conventional legal perspective, this judicial preference for compromise may be criticized for its lack of coherent principles: by failing to articulate an unequivocal approach to affirmative action, Bakke and its progeny maximize public uncertainty and foster arbitrary judicial action. I call into question both of these approaches, arguing that each evades the substance of Bakke itself The argument from judicial preference provides reason to expect some kind of affirmative action muddle, but it fails to examine the specific content of the muddle the Court has produced. The appeal to legal principle compounds the problem of evasion by dismissing the conflicting claims the Court has made for the sake of unified principles the Court has failed to endorse. Contrary to these approaches, I argue that the task is to account directly for Bakke's unresolved tensions, to explain their particular content and purpose.
In the second section, I consider Cass Sunstein's (1999) recent effort to provide such an explanation. Sunstein situates the Court within a particular political context, interpreting the uncertainties of Bakke's logic against the persistent divisions of the affirmative action debate. …