24 Pages Posted: 23 Nov 2004
The Supreme Court's decisions on race-based affirmative action has steered the constitutional conversation away from race and its role in American society and placed institutions at the center of the debate. Throughout the cases, the reasoning of the Court turns on how particular issues affect, distract, or fit into existing institutional arrangements and institutional practices. Race consciousness, when allowed, is permitted because of institutional reasons - that is, that result is dictated by the Justices' ideas and beliefs about various institutions in our society. How race-conscious policies and laws can be structured and implemented is also guided by the Court's institutional concerns and understandings. As a result the contours of constitutional doctrine on affirmative action are not determined by the demands of racial justice, but by the ability of racial preferences to fit into current institutional regimes.
The Court's emphasis on institutions in its reasoning and rhetoric instead of more explicit focus on racial considerations is problematic. Not only does the Court's reliance on institutional concerns obscure the central issues of race involved and of America's racial past inherent in the affirmative action controversy, but it also rests on unquestioned and unexamined premises. The Court presumes the institutions and institutional practices it defers to are neutral, natural, and necessary, failing to recognize how those structures are themselves the product of a contingent social context. The social environment in which institutions arise impinges upon and shapes those regimes and operations. Yet the Court bases its decisions on idealized versions of American institutions, decontextualized from the real world of American experience.
Consequently, the Court does not notice how the general attitudes of prejudice and racism in society infect and infiltrate the very institutions to which the Court defers. If racism has contaminated the structure and operation of institutions, then there is considerably less reason to accord them deference, at least in their current condition.
Emphasis on institutions in place of issues of race also causes the Court's reasoning to become entangled and incoherent, shifting from one case to the next as the Court becomes lost due to its effort to avoid the central issues of race involved in affirmative action. A close examination reveals that in each case the Court actually reasons from different premises, reorders its priorities, and betrays deep inconsistencies with the earlier affirmative action precedents. While consistently themed around the subject of institutions, the opinions continually reinterpret, reshape, and reconfigure the institutional moorings upon which earlier decisions were based.
To rebut the institutional arguments put forth by the Court, an alternative discourse centered explicitly on race is offered. This alternative discourse is not intended to be complete or uncontroversial. Rather it serves as a useful foil to dissect the Court's arguments and expose the premises that go unquestioned.
Keywords: Constitutional law, affirmative action, race discrimination, equal protection of the laws
Suggested Citation: Suggested Citation
Winkler, Adam, Sounds of Silence: The Supreme Court and Affirmative Action. Loyola of Los Angeles Law Review, Vol. 28, April 1995. Available at SSRN: https://ssrn.com/abstract=622387