People with life tenure and virtually unreviewable governmental power, no matter their characters, will likely end up believing they are always the smartest people in the room. The only judges in the world who serve for life and possess such authority are the justices of the US Supreme Court, which explains their frequent lack of humility when reviewing difficult decisions made by more accountable and elected governmental officials. This problem will present itself starkly this term with Fisher v. University of Texas, which will be argued on October 10, 2012, when the Court decides whether to end affirmative action in this country forever (or at least until the ideological balance of the Court changes).
As a frequent member of my law school's student admissions and faculty recruitment committees for over two decades, I can attest to how difficult and morally uncomfortable it is to use racial preferences. My faculty has in good faith wrestled with these issues and tried to make the best decisions we can on the relationship between trying to increase the diversity of our school while not using race disproportionately. There is nothing easy about trying to achieve a proper balance on this difficult issue.
In my new book, Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges, I document how consistently the Court has interfered with and impeded the quest for racial equality in this country from Dred Scott and The Civil Rights Cases through Bakke and Parents Involved. It would be a terrible shame for the Court to once again stop a public institution the University of Texas from trying its best to help minority groups.
As the debates escalate and with the Supreme Court's current term barely a week old, we would do well to keep separate the policy arguments from the constitutional arguments. In theory, the Supreme Court should stick to the latter, but in prior cases the Court has substituted its policy views for those of thousands of school administrators all across the country. This is where humility comes in. People of good will (and educational experts) can and do reasonably disagree over whether racial preferences help or hurt historically disadvantaged groups (though I think they help). But the constitutional arguments, meaning debates over what text and history show, aren't as difficult. If Associate Justices Antonin Scalia and Clarence Thomas sincerely believed in the textualist-originalist approach to constitutional interpretation they so often espouse, they would agree.
The text of the Fourteenth Amendment guarantees all of us the "equal protection of the laws." It might be argued that admissions officials using minority status to elevate the applications of disadvantaged students violates the "equal protection" rights of white students. But, it can just as reasonably be argued that, because our government legally used explicit racial preferences to disadvantage minority groups from 1787 to at least 1964, it is impossible to grant those people "equal protection" without trying to address generations of unequal treatment. The main point is that this is an issue that is not resolved by the text of the constitution.
When the text of the constitution is ambiguous, the conservative justices argue history should be explored for the best constitutional answers. If they were serious about that suggestion, they would have to affirm affirmative action programs as constitutional because at the time of the adoption of the Fourteenth Amendment, there were numerous minority preference programs in place and no one considered them unconstitutional. Perhaps that is why the conservatives on the Court have never discussed the history of this issue. They know that approach would favor affirming the constitutionality of affirmative action.
Thomas repeatedly refers to a "color blind" constitution in affirmative action cases, but that conclusion simply represents his personal value judgment. The constitution was definitively not "color blind" for over 180 years. The drafters of the Fourteenth Amendment did not view it as "color blind," and would likely be shocked to learn that the Equal Protection Clause prohibits the use of race by whites to help minorities. More importantly, whether the Fourteenth Amendment should be viewed as installing a "color blind" principle or an anti-caste principle is hotly debated among historians, law professors, educators and lay people. There is no right or wrong answer to that question.
All of which brings us back to humility and the justices thinking they are the smartest person in the room. When the text and history of the constitution are unclear, the Court is supposed to approve, not veto, the decisions of other governmental officials. As you read this column, admissions officials at colleges and universities all across the US are trying in good faith to adopt policies and make decisions that balance the many benefits of diversity with the need to treat the white majority (or even minorities not specifically included in affirmative programs) fairly and responsibly. These questions are complex, often painful and fraught with both individual and group value judgments. These issues also depend to a great degree on the unique geographic, historic and market factors that vary greatly depending on which school is at issue. These varied questions are simply not addressed by, and cannot be resolved with, reference to the US Constitution.
That being the case, the justices should adopt a posture of humility and not substitute their own judgments of educational policy, diversity and fairness for those of academic experts accountable to their local communities. On the difficult issue of majorities using racial preferences to help minorities, Supreme Court justices are not the smartest people in the room.
Eric Segall is a professor of law at Georgia State University College of Law where he teaches federal courts and constitutional law. He is the author of the new book "Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges."
Suggested citation: Eric Segall, Judicial Humility and Affirmative Action, JURIST - Forum, Oct. 8, 2012, http://jurist.org/forum/2012/10/eric-segall-humility-affirmative-action.php.
This article was prepared for publication by Ben Klaber, a senior editor for JURIST's academic commentary service. Please direct any questions or comments to him at email@example.com