The Magazine

How Not to Abolish Affirmative Action

The dangers of a victory delivered by the Supreme Court.

Feb 10, 2003, Vol. 8, No. 21 • By CHARLES KRAUTHAMMER
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BEWARE WHAT you wish for. Conservatives have long hoped for the abolition of affirmative action on the grounds that racial preferences of any kind are not only destructive of the American ideal of equality but devalue minority achievement and poison ethnic relations. And the day now seems at hand, the issue having once again reached the Supreme Court. The University of Michigan cases now before the Court grant explicit racial preferences to black, Hispanic, and Native American students. The practice is deeply offensive to any notion of equality. Michigan's undergraduate school adds 20 points to the application of any student belonging to these designated minorities (a perfect SAT score, by way of comparison, is worth only 12 points)--the mathematical equivalent of toting up everyone's score and then subtracting 20 points if your skin happens to be white, or if you happen to be, say, Asian or Arab American.

The question of the day had been whether the president would cave in to the post-Trent Lott reaction and abandon his long-standing opposition to racial preferences by ducking the case. He did not. However, many conservatives (including at this magazine) were disappointed that he did not oppose the whole scheme root and branch by denying that diversity is a compelling state interest. He merely argued that there are other, race-neutral ways to achieve diversity, thus obviating the need and the constitutional justification of race-sensitive programs like Michigan's. The president's brief would thus strike down the Michigan program but leave the issue of abolition unresolved.

The question conservatives have not squarely faced, however, is whether we really want to win the argument at its sharpest and most comprehensive--the total abolition of affirmative action--in the Supreme Court. I used to think so. I'm no longer sure that is the way we should want this issue resolved.

I never thought I'd find myself talking about the wisdom of the Bakke decision. Not the logic, mind you. The logic was an abomination. The Court ruled every-which-way, inventing unintelligible distinctions between quotas and goals and timetables and the mere consideration of race as a "plus factor." In effect, it simply took a dodge, leaving the door open for every jurisdiction and organization to work out its own affirmative action schemes. Yet in retrospect there was a social benefit to this messiness. That cacophonous ruling created a marketplace of affirmative action schemes. Bakke did not foreclose the issue. It tried to contain but not abolish the allocation of preferences. As a result, it allowed society a quarter of a century to duly experiment and see the results.

As social science, the experiment has been a success. Affirmative action has been tried and found wanting. When put to the test of popular opinion, racial preferences fail. Affirmative action is dying a popular and legislative death. It would be overkill and perhaps even counterproductive to preempt that success by killing it judicially by fiat of the Supreme Court.

The flaws and injustices of affirmative action as demonstrated by its real-life practice over the past quarter-century have become so apparent that even California and Washington, two of the most liberal states in the union, decisively abolished it. In California, a state that went Democratic in the last two presidential elections by about 12 percentage points, a 1996 ballot measure to abolish all racial preferences passed with a 54 percent majority. This in a state that is now minority white.

Equally liberal Washington state abolished affirmative action two years later by a 16-point landslide, despite the fact that affirmative action opponents had been vastly outspent. In Florida, the governor (Jeb Bush) preempted a similar referendum by legislating the abolition of race preferences in college admissions and in contracting. True, the referendum movement has slowed down in the face of establishment and institutional pressure. But it has not been reversed. Affirmative action is about where abortion was 30 years ago. As societal norms are changing, it is on its way out.

It is an accident of history that the Michigan case came to a head within days of the 30th anniversary of Roe v. Wade. Nonetheless Roe should be a caution to us. At the time the decision was handed down, the laws against abortion were also on their way out. Legislatures were beginning to loosen or abolish the restrictions. Public opinion was changing. But instead of letting the people decide, the Court stepped in and legalized abortion by fiat.

The United States is the only country in the Western world to have settled the abortion issue not by popular or democratic action but by judicial decree. The result has been a social disaster. Even the more sophisticated liberals acknowledge the harm. "Roe v. Wade . . . seemed entirely to remove the ball from the legislators' court," said Ruth Bader Ginsburg in her Madison Lecture at NYU Law School (March 9, 1993). It thus "halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue." The result of that hubris was to leave abortion opponents unreconciled, disenfranchised, and angry--which is why the abortion issue remains neuralgic and unsettled 30 years later.

We are at the same stage today on affirmative action. Public opinion and the democratic process, if allowed to operate, are on their way to abolishing this singular violation of the American ideal of equality. We're winning. It is perhaps better not to win it all too soon, too fast in the Supreme Court, by taking the issue off the table of public opinion and out of the democratic process. It might be best for the Court to follow the middle position advanced by the Bush administration, which would strike down Michigan's system but leave to the people the more general question of diversity and the use of preferences to achieve it. I trust the people.

Now, of course, there is a fundamental difference of rightness between the Supreme Court's ruling on Roe and its potential ruling on the Michigan cases. The constitutional right to an abortion is a pure invention, a fiction conjured out of a "penumbra, formed by emanations" of the Constitution. In other words, out of whole cloth. On the other hand, any Court ruling against racial preferences clearly would be grounded in the plainest meaning of the Equal Protection Clause and of the founding ideas of the republic.

My point is not the justice or rightness of any such ruling. My point is its political and social effect. There are many issues of principle at stake here, and one of them is the wisdom of the Supreme Court's decreeing social revolutions. Conservatives generally think that is a terrible idea. And they are right.

The one exception is, of course, Brown v. Board of Education. But it is not a justification for judicial social crusades. Brown was right but Brown was entirely sui generis. Its uprooting of social norms and precedents should never have been taken as a model because Brown was unique--not because of the moral force of unshackling a subject people, but because of the constitutional imperative to undo disenfranchisement. Generally speaking, popular and legislative will should determine the great questions of the age. However, when the question is the disenfranchisement of one section of the citizenry, you have a Catch-22. The disenfranchised cannot express their popular will and initiate change until they have been enfranchised--but they cannot be enfranchised until that change has already taken place. Blacks were denied the very power to abolish their political disabilities by the fact of their political disabilities. Which is why the courts had to intervene.

But these conditions simply do not apply in other situations. They certainly do not apply to abortion, where women have a vote (although the fetus does not, but that's another question). And they certainly don't apply to racial preferences, a question that can be settled by expressions of popular will, since no one, majority or minority, is denied the right to influence that decision.

There seems to me no question that a radical abolition of racial preferences by Supreme Court decree would be both just and constitutional. But I suspect it would be something of a Pyrrhic victory. This is a battle better won at the ballot box and in the legislatures. Win it in the courts--foreclose the issue by judicial action--and it will end up in the streets. Like abortion.

Charles Krauthammer is a contributing editor to The Weekly Standard.