The Michigan Mess: Supreme Court`s Lawlessness Dates Back To Brown

Columnists have had a field day
with Justice

Sandra Day O`Connor`s
Supreme Court decision [Grutter

]. In effect, O`Connor declared
diversity to be a “compelling state interest”
that trumps the

equal protection clause
of the

U.S. Constitution

Thomas Sowell

the five-member majority as “vacancies
without resignations.”

Shelby Steele
declared the ruling

“a victory for white guilt.”
Michael Kinsley

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

Devoid of

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

political majority

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

“preferred minorities.”

Today Americans find themselves in
the peculiar situation that racial quotas have been
ruled unconstitutional by the Supreme Court (Bakke
1978, Gratz 2003

), 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
.” 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.

Racial profiling, which is not
permitted in

crime prevention

airport security
, is just dandy at institutions of
higher learning.

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
racial privilege.

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 law.

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
O`Connor decision.

That is what makes it a landmark.

Paul Craig Roberts is
the author of The

New Color Line: How Quotas And Privilege Destroy
, with Lawrence
M. Stratton.