Will justices be consistent in their convictions?

By Mitchell Berman

The U.S. Supreme Court heard argument last month in the latest constitutional challenge to race-based preferences in university admissions. The court's decision in Fisher v. University of Texas may determine affirmative action's future. It may also reveal the extent of the conservative justices' avowed commitments to judicial restraint.

To understand why Fisher has this significance, recall the court's holding in June that same-sex couples have a constitutional right to marry. In that case, Obergefell v. Hodges, the four most conservative justices dissented. Each emphasized that in our democracy, policy decisions are left to the people or their elected representatives unless the Constitution clearly provides otherwise.

Chief Justice John Roberts, for example, maintained that our nation's founders - those who "risked their lives and fortunes for the precious right to govern themselves" - "would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges." Similarly, Justice Antonin Scalia rhapsodized that "until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views." Arguing that "that is exactly how our system of government is supposed to work," Scalia decried that the court's holding "robs the people of ... the freedom to govern themselves" and displaces self-government with rule by "a majority of the nine lawyers on the Supreme Court."

These arguments apply to affirmative action, too. Affirmative action and same-sex marriage are both highly controversial, intensely debated matters of public policy. In both cases, opponents of existing policies have won significant but incomplete legislative successes. In both, plaintiffs ask unelected judges for constitutional rulings, eliminating their need to prevail in the political realm.

If, as Roberts bemoaned in Obergefell, the court's decision there forever cost "proponents of same-sex marriage ... the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause," opponents of affirmative action will incur precisely the same loss if they prevail in Fisher.

So Fisher involves more than affirmative action. It also poses the question whether conservative champions of judicial restraint will defer to democratically accountable representatives on decisions that conservatives strongly disfavor.

Of course, conservatives deny that the cases are analogous. They say the 14th Amendment's equal protection clause - which commands that "no state shall deny to any person ... the equal protection of the laws" - gives affirmative action's opponents the clear constitutional hook that same-sex marriage advocates lacked.

In truth, though, the constitutional command is anything but clear. To start, the clause mandates equality only with respect to protection. And admissions policies concern how to distribute benefits, not how to allocate protection.

More significantly, even if admissions policies are unconstitutional when unequal, just what the constitutional ideal of equality means is deeply contested. Plainly, the American people disagree mightily over whether differential treatment designed to aid historically disadvantaged racial minorities offends the constitutional equality guarantee.

State universities employ many admissions preferences: for in-state residents, athletes, veterans, and so on. Nobody believes that all such admissions preferences deny equal protection. So conservatives need to explain why admissions preferences for members of historically disadvantaged racial groups are unconstitutional when preferences for other groups are not. The Constitution's bare text cannot resolve this question.

In response, conservatives argue that the 14th Amendment, adopted immediately after the Civil War, was intended to bar all discrimination on account of race. Certainly it was adopted to prohibit discrimination against black people. But this does not entail that the authors intended to prohibit all racial discrimination - even policies that advantage blacks.

Indeed, only five years after its ratification, the court described "the evil to be remedied" by the equal protection clause as the "existence of laws in the states where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class." It pointedly added: "We doubt very much whether any action of a state not directed by way of discrimination against the negroes ... will ever be held to come within the purview of this provision."

Maybe the constitutional principle of equality, rightly understood, prohibits all racial discrimination. But maybe it prohibits practices that perpetuate caste-like hierarchy or that disadvantage vulnerable minorities. Fisher should win on the first construal but lose on the others. I'm not defending any particular interpretation of the equal protection clause now, for my point is about consistency, not correctness.

Simply put, advocates of judicial deference have offered no compelling arguments grounded in text or history for the first formulation. Conservatives' repeated insistence that "our Constitution is color-blind" is a motto, not an argument.

In his Obergefell dissent, Roberts protested that the court must "not hold laws unconstitutional simply because we find them unwise, improvident, or out of harmony with a particular school of thought." Scalia denounced his colleagues for treating the equal protection clause as a license to strike down "a difference in treatment that this court really dislikes."

Fisher will help reveal whether these justices have the courage of those convictions when plaintiffs carry a conservative banner, not a liberal one.

Mitchell Berman is the Leon Meltzer professor of law and a professor of philosophy at the University of Pennsylvania. mitchber@law.upenn.edu