Serpent in the Supreme Court: The Folly of “Strict Scrutiny,” from Japanese Internment to Affirmative ActionJonathan Bean • Thursday December 10, 2015 2:51 PM PST •
© 2014 Nicholas Youngson; used pursuant to Creative Commons License Attribution-ShareAlike 3.0, CC by SA 3.0; nyphotographic.com*The U.S. Supreme Court heard arguments this week in The Fisher II case involving the use of race in admissions to the University of Texas at Austin. This case, like other college admission decisions dating to Bakke (1978), hinges on how the Supreme Court applies a “strict scrutiny” standard that originated with a decision upholding Japanese internment (Korematsu v. United States, 1944). Now heralded as an advanced yardstick in civil rights jurisprudence, this contrived standard did Japanese Americans little good: the Court deferred to the government’s wisdom in interning citizens based on their race or national origin. If internment can pass “strict scrutiny,” small wonder that the Court defers to the serpentine arguments of university officials who state that, by doling out race preferences, they are “really” searching for the educational benefits of “diversity”–another legal concept invented by the Supreme Court in the Bakke case (1978)! The Fisher II debate over diversity preferences is simply more of the same.
(Readers interested in the particulars of the affirmative action cases involving the University of Texas can read this analysis).
Here is how the process works: The Court arrogates to itself the right to decide what level of scrutiny to apply to our constitutional civil rights, then invents criteria to uphold state violations of those rights (to be fair, the Court sometimes strikes down violations it does not like). Strict scrutiny states that racial discrimination must be “narrowly tailored” to serve a “compelling governmental interest.” This level of judicial activism has not served the Court or the country well. What we need is simple adherence to the Equal Protection Clause of the Constitution and to the absolute nondiscrimination yardstick set forth in the Civil Rights Act of 1964.
Necessity is the mother of invention, the saying goes. Thus, in 1944, a Supreme Court majority deemed it “necessary” to uphold internment while stating that racial discrimination in general was a really bad, “suspect” thing subject to strict scrutiny. Looking internment in the eye, the majority declared that it served an important government interest. Justice Frank Murphy vigorously dissented:
I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must, accordingly, be treated at all times as the heirs of the American experiment, and as entitled to all the rights and freedoms guaranteed by the Constitution.
In some historic Court cases, a dissent goes on to serve as a beacon to civil rights advocates. (This is a point emphasized in my book Race and Liberty: The Essential Reader). When a Court majority upheld streetcar segregation in Plessy v. Ferguson (1896), Justice John Marshall Harlan’s dissent inspired the NAACP to fight on for colorblind law and equal protection, regardless of race. In that dissent, Harlan famously declared:
Our Constitution in color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.
Sadly for us, Murphy’s dissent never swayed the court from its “strict scrutiny” standard. Doubly tragic, the Court abandoned Harlan’s color-blind view of the law (enshrined in the Civil Rights Act of 1964) when it invented “diversity” as a loophole for universities to circumvent the guarantee of equal protection (Bakke 1978). Ever since Bakke, the Court has applied Goldilocks reasoning to the various ways universities discriminate: this form is too rigid (no quotas), another is too vague, but some racial “diversity” preference is acceptable as long as you can tell us how it produces “educational benefits.” How far may universities run with racial diversity? Run a scheme by us, the Court responds, and we will know a benign racial scheme when we see one.
None of this provides rule of law or guidance to universities who are, at any rate, determined to discriminate, whatever the Court decides. Thus, those advocating for nondiscrimination sue the University of Texas again for treating the last Court decision as a paperweight. We arrive at Fisher II, which is almost certain to “kick the can” again. Universities do as much as the Court will allow–and that is a lot. Even when universities run afoul of the Court (as happened in a 2003 case), the justices act as if the universities are trying to do the right thing but simply failed in that one instance. In reality, universities will lawyer up “massive resistance” to nondiscrimination longer and harder than the southern segregationists ever could manage. Meanwhile, the Court’s deference to the specious arguments of university officials borders on submissiveness.
Can we return to the classic liberal vision of principled, predictable, and colorblind law? One way would be accept the plain meaning of the Civil Rights Act of 1964: forbid all discrimination in programs that receive federal aid. (That would include all public universities). That reading of civil rights was the position taken by four justices in the Bakke case. Justice Powell joined that plurality to make it a majority; but, in so doing, introduced the possibility of “diversity” as a legitimate use of race. Little did he know how mischievous that phrase would become. The Court struck down rigid racial quotas but left “diversity” to be debated ad nauseam, with strict scrutiny the standard.
On a positive note, voters in several states amended their state constitutions to effectively breathe the Civil Rights Act back into law, thus overturning judicial and court decisions to the contrary. Those states include: California, Michigan, Washington, Arizona, Nebraska and Oklahoma. For a discussion of that movement in California and the California Supreme Court’s decision to uphold the amendment, see the document “Turning Back the Clock to the Civil Rights Act of 1964,” by Janice Rogers Brown, in Race and Liberty: The Essential Reader).
The Civil Rights Act flatly prohibits discrimination based on race. Yet, no matter how plain the nondiscrimination language, at the national level there seems to be little legislative or executive will to enforce it as written. The 1964 Act was the crowning colorblind achievement of the civil rights movement. The sponsors of the Act did everything in their power to emphasize it meant nondiscrimination. Period. Yet, with decision after decision, the Court has undone that achievement.
It would do no good to pass another Civil Rights Act mandating nondiscrimination, since we already have one that the U.S. Supreme Court ignores. The result is a nation that can’t resolve divisive debates over race. Elections are battled as one party’s effort to (among other things) stack the courts to favor their side against the other party. Yet changing the court’s composition will do little good if the doctrine of strict scrutiny stands. The swing justice in the Fisher II case, Anthony Kennedy, came of age in the 1950s–the earliest years of the standard. Every justice on the Court has lived in the world of strict scrutiny.
To repeat: The root problem is the Court’s invention of “strict scrutiny” and application of other contrived criteria to civil rights cases (“diversity,” “critical mass of underrepresented minorities,” etc.). Such scrutiny is strict in theory, deferential in practice. Indeed, it must be deferential in some cases: the original point of strict scrutiny was to have a reason to uphold internment! If the Court did not have the power to uphold the “legalization of racism” (Murphy’s phrase), it would have to rule that internment (and race preferences today) are unconstitutional violations of the Constitution’s Equal Protection clause. But, the Court wishes to legally engineer outcomes that a majority believes are beneficial, even if they are unconstitutional or illegal by classic pre-strict scrutiny standards (Justice Murphy’s Law, as it were).
There is little cause for hope. Perhaps the Constitutional system of checks and balances has failed us. Congress could never force the Court to interpret the law as intended. Besides, the 1964 Congress no longer sits in office. It is highly doubtful you could get a majority of today’s Congress to enact the nondiscrimination law of 1964! There would be accusations of “colorblind racism” and other nonsense peddled by academic hustlers since the 1960s.
The executive branch has committed mischief of its own (various forms of racial discrimination are backed by Executive Orders and agency rulings). The Court thought it applied scrutiny more strictly in the area of government contracting. In practice, executive agencies have simply pushed junk social science to demonstrate the need for contracting set-asides for minorities and other favored groups. (Never mind that the contracts sometimes pass through to huge corporations).
There is no magic wand to right the world. All we can do is discuss and debate the merits of rule by judicial oligarchs (and others in power). I, for one, stand for the rule of law, not the rule of men (as the old saying went). One step in that direction is to challenge the notion of court-made law. Under the Constitution, properly understood, strict scrutiny does not exist. Its imposition is no more right than the imposition of any other unjust exercise of power.
For more on this general topic, see
Race and Liberty: The Essential Reader, edited by Jonathan Bean
Diversity: The Invention of a Concept, by Peter Wood.
The Bakke Case: Race, Education, and Affirmative Action, by Howard Ball
“Strict Scrutiny,” Facts on File (original source: Encyclopedia of the Supreme Court)
* I posted this image accompanying my posting of December 10, 2015 without attribution. The attribution is:
©2014 Nicholas Youngson used pursuant to Creative Commmons License Attribution-ShareAlike 3.0, CC by SA 3.0, nyphotographic.com