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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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.