It’s all a matter of tailoring, see? — wide vs. narrow, as in lapels. Narrow is the rage this season at the U.S. Supreme Court. A “narrowly tailored” admissions plan for boosting minority enrollment at the University of Michigan Law School? A 5-to-4 majority of justices beamed. Such a plan advances “a compelling interest in obtaining the educational benefits that flow from a diverse student body.”
Ah, but what about a plan that awards minority applicants 20 resume-padding points when they apply for undergraduate work at the same institution?
The justices scowled. No, never. the 6-to-3 majority said. Too wide, too spacious, not enough restraint in the tailoring. Out went the plan.
What? You can’t quite make out the principle from which the court was working? That is because none of us, with high-powered microscope or bottle-thick spectacles, can see what isn’t there.
When it comes to affirmative action, the high court won’t say yes, and it won’t say no; it won’t say stop, and it won’t say go. The principle is to have no principle. This is odd, because the 14th Amendment to the Constitution supposedly sets out with some certitude the principle that all citizens shall enjoy the equal protection of the laws.
Affirmative action was never, in reality, a legal question; rather, it was a political one. Learned, copiously footnoted pleadings in court substitute for political broadcasts, centered on the problem of how, and how much, to help the descendants of the African slaves.
One day, when we get far enough past Jim Crow (or, alternatively, when the concept of a racial majority disappears totally), perhaps we can talk about such things. When that happens, let us hope some publisher or law school faculty is wise enough to lay before us the witness of Justice Clarence Thomas. Justice Thomas, during his tenure on the court, has talked more good sense about affirmative action than anybody else has. He sees a principle all right. The principle is that the Constitution as presently written can’t be distorted in order to exalt the interest of one racial group, or combination of groups, over the interests of others. His long, scholarly dissent in the Michigan law school case (Grotter vs. Bollinger) is frankly inspirational.
Says the high court’s sole black member: Lying beneath the surface of the decision is “the benighted notion that one can tell when racial discrimination benefits (rather than hurts) minority groups … and [when] the racial discrimination is necessary to remedy general society ills.”
Michigan’s law school, Justice Thomas says, “seeks only a facade — it is sufficient that the class looks right, even if it does not perform right.” To erect such a facade, the law school “tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it affords. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition.” The kind of racial discrimination that Michigan’s guilty white liberals (my phrase, not Justice Thomas’) try with mock beneficence to impose becomes “cruel farce” (Justice Thomas’ phrase, not mine). “The majority of blacks are admitted to the law school because of discrimination, and because of this policy all are tarred as undeserving.”
In a pusillanimous age, the courage and common sense of Clarence Thomas stand out a mile. Black “leaders,” who should be his biggest fans, can’t stand being in the same room with him. Yet over and over, as in the Michigan case, he kicks aside the political junk, disclosing the constitutional truths that are at stake: not least the truth that our Constitution (he quotes the first Justice John M. Harlan to this effect) is “colorblind.”
Here’s an oddity: For all that, Clarence Thomas is among our shining witnesses for equality and against racial prejudgment, his colleagues half the time don’t get it. Just a little racial discrimination, they keep saying, just the right amount.
As if a “right” amount of discrimination, constitutionally speaking, weren’t just the same as a leadless pencil or a pig with wings.
William Murchison is a nationally syndicated columnist.