What does justice marshalls bakke opinion find ironic about the majority position

The Supreme Court has gradually narrowed the acceptable grounds for affirmative action since 1978, when it found, in the Bakke case, that racial quotas could not be used in university admissions. That pattern makes the case known as Fisher II, which was argued today, feel momentous: it gives the conservative majority a second chance to decide that the University of Texas at Austin used race in an unconstitutional way when it chose the freshman class in 2008 and rejected the white applicant Abigail Fisher, and to rule that it’s unconstitutional for public universities and colleges to take race into account in admissions.

Justice Lewis F. Powell, Jr., wrote the controlling Bakke opinion, in which he held that racial and ethnic classifications were inherently suspect. As his biographer John C. Jeffries, Jr. has explained, Powell wanted to preserve “for the future the ideal of a color-blind society.” But, Jeffries continued, Powell believed that giving preference in admissions to well-qualified members of racial and ethnic minorities was “vital to an integrated society,” and that outlawing the practice would be, in Powell’s words, “a disaster for the country.”

So Powell voted with the four justices who believed that a plan to set aside sixteen seats in a hundred-person class for minority students would be a form of reverse discrimination. But he also voted with the other four justices, who thought that the set-aside program, at the medical school of the University of California, Davis, was a necessary and constitutional response to the nation’s history of racial discrimination.

Powell’s approach led to the conclusion that there was no difference between positive discrimination designed to include a group and negative discrimination designed to exclude one, and to a preoccupation with how the remedy of affirmative action could be justified, as opposed to why it was needed. The Court required that an affirmative-action program in education prove that it served a compelling interest (educational diversity met that standard) and, in addition, that it was carefully tailored to serve that purpose.

The dissent by Justice Thurgood Marshall in the Bakke case, all but forgotten in current debates about affirmative action, addressed the need rather than the justification. It is worth reading today, as many communities, universities, and other institutions across the country engage in difficult yet remarkable conversations about race and justice, in which there is a wide consensus that racism continues to degrade the criminal-justice system, corrupt policies on housing and finance, and distort many other elementary parts of American life.

Marshall began, “I agree with the judgment of the Court only insofar as it permits a university to consider the race of an applicant in making admissions decisions. I do not agree that petitioner's admissions program violates the Constitution. For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.”

From the early seventeenth century, he went on, when “the Negro was dragged to this country in chains to be sold into slavery,” through the end of the eighteenth century, in America’s fundamental law, “the Framers made it plain that ‘we the people,’ for whose protection the Constitution was designed, did not include those whose skins were the wrong color.” The Supreme Court confirmed this view before the Civil War and long after, in the North as well as the South.

Even, Marshall continued, when the Court struck down some Jim Crow laws, which denied blacks “the opportunity to become doctors, lawyers, engineers, and the like,” the decisions “did not automatically end segregation, nor did they move Negroes from a position of legal inferiority to equality. The legacy of years of slavery and of years of second-class citizenship in the wake of emancipation could not be so easily eliminated.”

As a result, Marshall wrote, a decade after the civil-rights movement, “The position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment. Measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream for the Negro.”

He presented some basic facts of inequality (“The median income of the Negro family is only 60% that of the median income of a white family, and the percentage of Negroes who live in families with incomes below the poverty line is nearly four times greater than that of whites”) and concluded, “In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order. To fail to do so is to ensure that America will forever remain a divided society.” (As it does today: in 2011, the median income of black families was fifty-eight per cent of the median income of white families, and there were three times as many blacks as whites living below the poverty line.)

The Roberts Court has dramatically rejected Marshall’s view in one case after another. In 2007, in two cases considered together, the Court struck down voluntary plans that were successfully helping to maintain integration in public schools in Louisville, Kentucky, and Seattle, Washington. In 2013, in a case about voting discrimination in Shelby County, Alabama, the Court found that the Justice Department’s pre-clearance of changes in voting procedures in districts with histories of persistent discrimination was unconstitutional. In 2014, the Court upheld an amendment to Michigan’s constitution that prohibits state universities from considering race in admissions.

In two of the three cases, Chief Justice John G. Roberts, Jr., authored an opinion that made plain his strong aversion to the government’s use of race as a basis for decision. (“It is a sordid business, this divvying us up by race,” he wrote in another opinion.) He had asserted these beliefs in his twenties, as a lawyer in the Reagan White House, and continued to assert them in his thirties, as the principal deputy solicitor general in the first Bush Administration. They define the heart of one of Roberts’s major projects as Chief Justice: to make the law color-blind so that the country will become color-blind. As Jeffrey Toobin wrote, in 2009, “Roberts is clearly moved by the subject of race” and believes that “the government should ignore historical or even continuing inequities and never recognize or reward individuals on the basis of race.”

In the school-integration case, Roberts said that there was no difference between the racial segregation struck down in Brown v. Board of Education, in 1954, and the racial integration in Louisville and Seattle. The last line of his opinion for the Court famously went, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In the voting-rights case, the Court put aside Congress’s voluminous findings that pre-clearance of voting requirements remained necessary and that, between 1982 and 2006, the government had relied on it more than seven hundred times to keep discriminatory requirements from going into effect. Roberts wrote, “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

Justice Anthony Kennedy wrote the controlling opinion in the Michigan case. There was no need for Roberts to write a separate one: his brief concurrence showed how personal the issue has become for him. Justice Sonia Sotomayor wrote provocatively in dissent, “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” Leaving “race out of the picture entirely,” Sotomayor said, “is a sentiment out of touch with reality, one not required by our Constitution, and one that has properly been rejected as not sufficient to resolve cases of this nature.”

Roberts responded testily, “But it is not ‘out of touch with reality’ to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good. To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

In the heat of dispute about a divisive case on affirmative action, it is understandable that Roberts bristled at being called out of touch with reality. But it is out of touch to believe that his syllogism about race and discrimination is realistic today—that the way to become a color-blind society is to stop being color-conscious. As the Harvard historian and president Drew Gilpin Faust wrote recently, in The New York Review of Books, “Many Americans in 2015 seem to be taking an unprecedented look at the nation’s past, at the legacy of slavery and race that has made us anything but a colorblind society.”

Faust was writing about the great historian John Hope Franklin, who died in 2009, at the age of ninety-four, and whose work on the myth of the color-blind society Thurgood Marshall relied on in his Bakke dissent. (The Justice wrote, “As Professor John Hope Franklin has observed, Americans proudly accepted the challenge and responsibility of their new political freedom by establishing the machinery and safeguards that insured the continued enslavement of blacks.”) Franklin’s work, as Faust noted, is more relevant today than ever. To advance the color-blind myth, she paraphrased Franklin as saying, “was not simply a delusion; it was a far more pernicious act of bad faith.” Faust went on, “We are neither colorblind nor post-racial. Franklin would have been deeply saddened, but I doubt he would have been surprised, by the events in Ferguson, Staten Island, Charleston, Cleveland, Baltimore. He would have been equally saddened and, one guesses, angered by the recent evisceration of the Voting Rights Act and by the threat to student body diversity in higher education implied by the Supreme Court’s decision to reconsider Fisher v. University of Texas.”

It is deeply disconcerting when the Chief Justice of the United States believes that the government can and should wish away historical or continuing inequities by asserting that it’s time our society started acting as if it’s color-blind: that reflects a willful blindness to a tenacious and supremely important challenge in American life, as tragedy after outrage manifestly about race have recently made clear. Roberts’s view reinforces the sense that the Court is isolated, ignorant about history that matters, and morally weak. On this issue, the weakness traces back to the opinion of Lewis Powell and his reluctance for the Court to exert any moral authority on the need for affirmative action.

Marshall’s dissent in the Bakke case addressed the consequences.

“I fear that we have come full circle,” he concluded. “After the Civil War our Government started several ‘affirmative action’ programs.” Referring to landmark rulings in which the Supreme Court cut off Congress’s efforts to promote racial equality and then upheld the rule of separate but equal treatment for blacks, he went on, “This Court in the Civil Rights Cases and Plessy v. Ferguson destroyed the movement toward complete equality. For almost a century no action was taken, and this non-action was with the tacit approval of the courts. Then we had Brown v. Board of Education and the Civil Rights Acts of Congress, followed by numerous affirmative-action programs. Now, we have this Court again stepping in, this time to stop affirmative-action programs of the type used by the University of California.”