DISCRIMINATORY IMPACT, AFFIRMATIVE ACTION, AND INNOCENT VICTIMS: JUDICIAL CONSERVATISM OR CONSERVATIVE JUSTICES?

David Chang

There is no satisfactory explanation of why the judge has the authority to impose his morality upon us. Various authors have attempted to explain that but the explanations amount to little more than the assertion that judges have admirable capacities that we and our elected representatives lack. The utter dubiety of that assertion aside, the professors merely state a preference for rule by talented and benevolent autocrats over the self-government of ordinary folk. Whatever one thinks of that preference, and it seems to me morally repugnant, it is not our system of government, and those who advocate it propose a quiet revolution, made by judges.
--Robert Bork

It is a tour de force . . . to suggest that the courts can elaborate a strong set of fundamental rights against which to test the outcomes of the fair political process in the name of such amorphous concepts as ensuring the common good or a "just constitutional order." Any such freewheeling judicial lawmaking is inconsistent with "[t]he policymaking power of representative institutions, born of the electoral process [which] is the distinguishing characteristic of the [constitutional] system.
--Henry Monaghan

INTRODUCTION: SHADES OF INNOCENCE

Imagine a white person. He is of moderate means, attended suburban schools, and has worked hard to become a police officer. Today he is unemployed, however, because the government, his employer, has adopted an affirmative action program. Suffering from a governmental choice to cure the lingering effects of historic injustices, he is an "inno cent victim" of the racial discrimination pervasive in America's past. He believes this is unfair. He hopes it is unconstitutional.

Now imagine a black person. He is poor, attended inner city schools, and has worked hard because he wants to become a police officer. He will not achieve this goal, however, because he cannot pass the government's qualifying test. Suffering from a governmental choice not to address the lingering effects of historic injustices, he, also, is an "innocent victim" of the racial discrimination in America's past. He believes this is unfair. He hopes it is unconstitutional.

In Wygant v. Jackson Board of Education, the Supreme Court determined that harmful effects suffered by whites from government policies designed to serve the permissible purpose of redressing the continuing effects of past racial discrimination are constitutionally significant inequities that can be justified only by "compelling" state interests. In Washington v. Davis, however, the Court determined that the harmful effects disproportionately suffered by blacks from government policies designed to serve a permissible purpose, but which reinforce the effects of past racial discrimination, have no such constitutional significance, but are matters of equity fully within legislative discretion. In both cases, the Court's decisions were formed and supported by self-professed judicial conservatives‹advocates of judicial restraint who claim that courts should invalidate legislative choices not when a judge's personal values are offended, but only when constitutionally rooted public values clearly have been violated. Indeed, Justice White's majority opin ion in Davis rested squarely on premises of judicial conservatism: he viewed the equities of allocating the harmful consequences of laws "designed to serve neutral ends" as posing political questions fit not for courts, but rather for "legislative prescription."

This Article considers whether there is a valid justification for according a different constitutional status to these two questions of social equity from the perspective of the principled judicial conservative. Part I considers whether Davis and Wygant can be reconciled on the ground that the cases involved different kinds of harm. It concludes that the harmful effects felt by individual claimants in each case are not distinguishable in any relevant manner. Part II considers whether the cases can be reconciled on the ground that Davis concerned the effects of facially neutral laws, whereas Wygant concerned the effects of racial classifications. It concludes that from the perspective of a consistent judicial conservative, reasons for denying special constitutional status to the equities of harmful impact suffered by disappointed black employees from traditional, facially neutral employment policies apply with equal force to the equities of harmful impact suffered by disappointed white employees from racially-specific affirmative action policies.

Part III suggests that those "judicial conservatives" (notably, Justices Rehnquist, White, Kennedy, Scalia, and O'Connor)‹as well as the "swing Justices" (Stevens and Powell)‹who have viewed discrimina tory impact on "innocent white victims" as constitutionally significant have pursued the very sort of judicial activism by personal predilection that was rejected in Washington v. Davis. It then argues that a principled judicial conservative should enforce the same values when scrutinizing claims of unconstitutional racial discrimination by either facially neutral laws or affirmative action programs: in both contexts, the challenged regulation should be invalidated only upon a finding that it was adopted for purposes that are constitutionally prohibited‹specifically, purposes reflecting racial prejudice.

Finally, Part IV explores how a judicial conservative should determine whether any given affirmative action program was adopted for the permissible purpose untainted by racial animus, favoritism, or stereo type‹of redressing the effects of past racial discrimination. This Part first examines barriers that the Court has erected against a finding of permissible purpose, and concludes that many of these barriers are not designed to uncover illicit purpose. Rather, like the inconsistent treatment of harmful impact in Wygant and Davis, these barriers reflect hostility by conservative Justices to nontraditional criteria for the distribution of public benefits and burdens. Part IV concludes by suggesting five principles to guide judicial review of affirmative action programs and by examining how several landmark cases might have been resolved under these proposed standards.

This Article suggests that personal values of political conservatism have pervaded the Supreme Court's decisions constraining legislative discretion to redress perceived racial inequity. The resulting conservative judicial activism reveals that protestations of judicial conservatism have been merely a facade.'° I write with the hope that through open recognition of this degeneration to conservative judicial activism, the Court's "judicial conservatives" -- present and future -- might retreat within the self-proclaimed limits of their role, and return to electorally accountable policymakers the discretion to make either traditional (and nonracist) or nontraditional (and nonracist) judgments about the just distribution of public goods.

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Carl Gutierrez-Jones
Department of English
University of California Santa Barbara, CA 93106
E-mail: carlgj@humanitas.ucsb.edu