The best thing about the long anticipated affirmative action decision just handed down by the Supreme Court is its relative insignificance. Adarand Constructors vs. Pena will go down in the annals of major affirmative action decisions, but the truly major decisions on affirmative action will no longer be made by the courts.
Conservatives are cheered that Adarand created serious obstacles to racial preferences in federal contracting. Liberals are consoled that Adarand still provides constitutional cover for such preferences so long as the government can provide detailed evidence of past discrimination and prove that the racial set-asides are a “narrowly tailored,” time-limited, last-resort remedy.
On the whole, conservatives come out ahead with Adarand. But the larger fact is that it does not matter much anymore what the Supreme Court says on the issue. Affirmative action is dying, and the cause of death will be legislative not judicial.
It is going to be repudiated in referendum after referendum, starting in California. It is going to be repealed by legislature after legislature, starting with the U.S. Congress. It is going to be struck down by executive after executive, starting with Gov. Pete Wilson, who did so in California earlier this month, and with the next Republican president whenever he comes to office.
Which is why conservatives should be relieved that the majority of the court did not adopt the position of Justices Antonin Scalia and Clarence Thomas that affirmative action be simply ruled unconstitutional and outlawed. Constitutionally, in my view, they are right. But it is best for democracy–indeed it is best for conservatism–that such revolutionary decisions be made not by nine wise (wo)men in black robes but by the people, in Congress and in their legislatures.
Conservatives can learn here from the bitter experience of liberals and abortion. Whatever its constitutional or social merits, the legalization of abortion by Supreme Court fiat in 1973 was one of the great political disasters for American liberalism. It practically created the New Right (now known as the Christian Right), whose growing power will continue to haunt liberals for decades.
Moreover, this was all largely unnecessary. Even before Roe vs. Wade, abortion law was well on its way to liberalization. New York state, for example, had already legalized abortion. It was only a matter of time before statehouses elsewhere caught up with the change in national mores.
Roe vs. Wade short-circuited this natural process by which changing mores translate inexorably into changing law. The premature nationalization of legal abortion by the court engendered a furious political reaction by people who rightly felt disenfranchised, a reaction that continues undiminished to this day.
In a democracy, the judiciary is the least desirable instrument for instituting large social change. Which is why judicial repeal of affirmative action would do more harm than good. Affirmative action is an idea whose time has come and gone. Judicial repeal would prematurely cut short the developing national debate that would confirm and, most importantly, legitimize its passing.
For a revolution to endure, better that the people be radical and the law moderate than the other way around. Sandra Day O’Connor, the justice who fashioned the 5-4 Adarand majority, is no radical. She is, here and on abortion, no abolitionist. She is, in fact, the most politically attuned justice on the court.
And with Adarand she has done the polity a favor by neatly framing the coming national debate. By narrowing significantly the scope of affirmative action, she has given President Clinton the plank he desperately seeks: a pro-affirmative action position that he can claim is both politically moderate and constitutionally necessary.
O’Connor has, in effect, cut back affirmative action to proportions that are palatable to a politician not bent on suicide. Clinton can now satisfy his moderates by cutting and pruning existing affirmative action programs, while placating his left by citing Adarand and claiming constitutional compulsion. He can claim further that he is, in fact, defending the body of affirmative action by eliminating those excesses that the court itself has deemed unconstitutional.
The beauty of the O’Connor decision is that we can now have full-fledged national debate on affirmative action without the constitutional questions getting in the way. Clinton will defend what Adarand permits. Republicans will call for abolition. The result will be not just a catharsis but perhaps even, after 30 years, a democratic resolution of the issue.