Of course, we all know how it has worked out. De-facto quotas have become the norm, talented blacks have come to feel that affirmative action taints their accomplishments, and political constituencies have encrusted themselves. Still, in the context sketched above, O’Connor’s opinion in Grutter seems much more reasonable. A jump-start, yes, but not a permanent division along racial lines. The issue is when to back away. She says 25 years hence; my own instinct is that a good time would have been right now. In particular, I find her reliance on the good faith of the academic community touchingly naive. But I also find it hard to assert a categorical constitutional argument against affirmative action. My case against it is, instead, prudential and pragmatic.I also recognize that courts find it difficult to be pragmatic when themselves professing to speak in categorical constitutional principles. With Brown, the Warren Court spit out the bit of judicial restraint. Rather than restrict itself to overriding the filibuster on racial issues, it scanned American society for errors it could correct. It rewarded the crusade against religion by Madalyn Murray O’Hair, overturning school prayer and setting in motion a strain of litigation that still has the Court deciding how many Santas are needed to balance a crèche. Police forces around the nation have perhaps learned to cope with Miranda v. Arizona (1966), but not without turmoil. These cases and others surely demonstrate the high price society pays for judicial overreaching.
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