Judicial Decision Making: Politics, the Supreme Court, and Affirmative Action By Brad Joondeph Assistant Professor, Law, Santa Clara University, 2004 Background In the recent decision of Grutter v. Bollinger , the Supreme Court held that it was constitutionally permissible for public colleges and universities to consider race in student admissions. Race-conscious admissions programs must be "narrowly tailored" to the goal of achieving diversity in their student bodies. Specifically, such programs must be "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." Under this rather exacting scrutiny, the University of Michigan's undergraduate admissions program, which assigned a specific number of points to certain applicants on the basis of race, was unconstitutional. But the Court held that Michigan's law school program was permissible, thus upholding the continuing validity of affirmative action in higher education. Political Argument The decision in Grutter was transparently political, in the sense that the outcome was grounded more in the political choices of the justices and the surrounding political context than in any objective legal principles. Of course, the Court's previous decisions concerning the use of race in government programs defined what was at issue, constraining the Court's discretion in important ways. For instance, the Court hardly could have held that universities were constitutionally obligated to pursue race-conscious admissions programs; prior decisions made that argument untenable. But the ultimate decision that racial diversity in higher education is a compelling state interest—and thus a valid justification for affirmative action—was a political choice. It could not be deduced logically from the relevant sources of law, such as the Equal Protection Clause of the Fourteenth Amendment or the Court's prior decisions. These were too indeterminate to supply something we could call a "correct" answer. Support for Political Argument Accusing the Court of engaging in politics might seem like a stinging accusation. After all, the common understanding is that, in our constitutional system of separated powers, the Supreme Court is supposed to operate outside the realm of politics. Its principal function in our system of "checks and balances," or so the argument goes, is to check the excesses of the political branches. Cases are to be decided according to objective and neutral principles of law, not the ideological values of the justices or prevailing public opinion. The very legitimacy of the Court, many argue, depends on this separation of law from politics.
- Summer '16
- Brown v. Board of Education