Working Paper No. 08-30:
Justice Kennedy's Stricter Scrutiny and the Future of Racial Diversity Promotion

Author(s):

Nelson Lund

Date Posted: June 2008

Availability:
Abstract (below) | Full text (most recent) on SSRN

Abstract:

More than half a century after Brown v. Board of Education, the Supreme Court is closely and bitterly divided about the meaning of that decision, and about the meaning of the Equal Protection Clause to which it appealed. The first major decision of the Roberts Court, Parents Involved in Community Schools v. Seattle School Dist. No. 1, took a small step away from a constitutional vision that permits racial discrimination by the government whenever courts believe that the effects on society will be salutary.

 

With respect to nonremedial affirmative discrimination, remarkably little has changed since the Bakke decision in 1978.

 

*           At that time four members of the Court would have allowed the government virtually unfettered discretion to practice what they regarded as benign forms of racial discrimination. Three decades later, four members of the Court take essentially the same position, and will clearly not be deterred by any of the contrary precedents that have built up during that period.

 

*           In 1978, four Justices read the Civil Rights Act of 1964 to forbid racial discrimination without regard to the motive for the challenged policy. Today, four members of the Court would give the Fourteenth Amendment (and perhaps also the Civil Rights Act) a roughly similar interpretation, though it is not clear how far they would go in challenging existing precedent.

 

*           In 1978, Justice Powell’s middle position was that racial discrimination practiced for judicially approved diversity purposes is permissible, but that care must be taken to limit its reach and obscure the identity of its victims. Today’s swing Justice has expressly endorsed Powell’s legal formula, although Kennedy’s application of this approach seems less latitudinarian than the one suggested in Powell’s Bakke opinion.

 

 

How much longer will this equilibrium remain stable? We seem to be one vote away from significant progress toward a relatively robust enforcement of antidiscrimination principles. We are also but one vote away from the opposite approach, which would endorse virtually any kind of discriminatory laws that a court believes were “enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class.” It is hard to believe that the Court won’t shift in one direction or the other fairly soon. But one might have said the same thing in 1978.