The Michigan Mess: Supreme Court`s Lawlessness Dates Back To Brown
Columnists have had a field day
Sandra Day O`Connor`s Supreme Court decision [Grutter
PDF]. In effect, O`Connor declared
diversity to be a “compelling state interest”
that trumps the
equal protection clause of the
described the five-member majority as “vacancies
Shelby Steele declared the ruling
“a victory for white guilt.” Michael Kinsley
wrote that O`Connor was splitting “a difference
that cannot be split.”
The most striking feature of the
decision is the absence of legal argument. The ruling
rests on sociological babble about “critical mass
The substitution of sociology for
law is the legacy of the
1954 Brown desegregation decision.
any legal argument, the Brown decision rested on
sociological testimony about whether black children
preferred white to black dolls and on Swedish socialist
Gunnar Myrdal`s assertion that white Americans are
“aversive racists.” This meant, Myrdal asserted,
that democracy would
perpetuate segregation as long as whites comprised a
To end segregation, the Supreme
Court would have to usurp the legislative function.
That is precisely what the
Court did in 1954. Although liberals cheered the end
of “separate but equal,” constitutional lawyers
were disturbed by the absence of legal reasoning in the
Court`s ruling. For example, Columbia Law Professor
Herbert Wechsler, a consultant to the NAACP in the
Brown case, told the Harvard Law School that he was
unable to find the constitutional principal that
justified the decision. He recommended that the Brown
decision be accepted on faith.
Even today Americans do not realize
that the Brown decision strikes at the heart of
democracy by substituting
judicial coercion for persuasion and good will. The
ruling made coercion the essence of civil rights. To
protect themselves from lawsuits, private companies
and public universities established racial quotas for
Today Americans find themselves in
the peculiar situation that racial quotas have been
ruled unconstitutional by the Supreme Court (Bakke
1978, Gratz 2003
PDF), but businesses and universities
can nevertheless be sued if they don`t have them.
The U.S. Department of Justice
considers all employers without proportional
representation of racial minorities (or a quota system
to achieve it) to be ipso facto guilty of racial
discrimination. To settle
civil rights lawsuits, companies are required to pay
monetary damages and to institute a
quota system to remedy the alleged discrimination.
Both Brown and Grutter are declared
to be “landmark
decisions.” Yet both are devoid of legal basis.
After a half century of a civil rights cause driven by
the principle that the ends justify the means, we have a
legal system that is based in sociological rant.
A legal system
unmoored from law can go in any direction. As the
dissenting minority put it, the O`Connor opinion
subverts the Court`s “own controlling precedents.”
A Supreme Court without precedents can deliver any kind
of ruling, depending on how the
wind blows or on what the Court can get away with.
The O`Connor decision
institutionalizes a lie. It says that quotas are
permissible as long as they are disguised and can be
denied to exist. The way to achieve this disguise is by
eschewing point systems that reward skin color (Gratz),
and instead choose preferred minorities individually.
The quota sneaks in under the cover of “critical mass
“critical mass” happens to be the same as
proportional representation, the scheme operates as a
racial quota for blacks.
The liberal majority on the Court
is trying to favor minorities without having to declare
the end of equal protection for whites. The “O`Connor
compromise” denies that admission based on diversity is
O`Connor speculates that after
another quarter century
“affirmative action” will no longer be necessary and
somehow will disappear, a speculation that demonstrates
a mind vacant of any legal understanding of the doctrine
of adverse possession (squatters` rights).
We have had racial quotas for
35 years. In 25 more years, racial quotas,
acknowledged or not, will be a 60-year tradition. Racial
privilege will be so ingrained that only a civil rights
revolution would be able to reestablish equality before
The evaded question is: Why does a
ruling that is not based in legal or constitutional
analysis mean anything – especially when the entire
legal ability of the sitting Court resides in the four
We would have obtained just as good
a ruling if we had asked a drug addict.
Any fool could have delivered the
That is what makes it a landmark.
Paul Craig Roberts is
the author of The
New Color Line: How Quotas And Privilege Destroy
Democracy, with Lawrence