In the very long, very complicated, very American debate about affirmative action, the U.S. Supreme Court is doing its best to become irrelevant. That’s nothing to be ashamed of.
Tuesday’s decision, about admissions preferences for minority applicants to Michigan’s state universities, is the latest case in point. The details matter, as they always do, but the most straightforward reading of the court’s opinion is this: We’re still working through what we think about affirmative action. In the meantime, if voters decide they don’t like it — well, go right ahead.
There’s nothing necessarily wrong with that; affirmative action is a dense and difficult subject. Nor is the court’s reluctance new; just last year, when asked whether the University of Texas’s affirmative-action program was constitutional, the court’s answer was hardly clear. (Short version: Yes, for the time being. Ask us again in a few years.) Still, can it be right for the court to run out the clock on such an important issue?
The answer depends on two distinct but related questions: Is affirmative action constitutional? And is it necessary? The first question is for the courts to decide, the second for the public. And even if the answer to the first one is yes, the answer to the second can be no.
The history of this case shows how these questions can get tangled in unhelpful ways. Eleven years ago, the Supreme Court ruled that the University of Michigan’s law school was allowed to consider race as a factor in admissions. Three years later, the state’s voters approved a ballot measure amending the state’s constitution to prohibit “preferential treatment” to any person or group “on the basis of race, sex, color, ethnicity, or national origin.” This amendment was immediately challenged as a violation of the U.S. Constitution’s 14th Amendment, which guarantees equal protection of the law.
This challenge is what the Supreme Court rejected Tuesday. In his plurality opinion, however, Justice Anthony Kennedy was careful to note: “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.” Voters, he wrote, may do so — so long as the resolution is “consistent with the Constitution.”
Which is a little like a baseball umpire (to choose a metaphor at random) saying any pitch can be a strike — so long as it’s over the plate. It’s not the most helpful guidance.
And yet: On the issue of affirmative action, the court’s reluctance to be clear may be wise. (And if it’s not reluctance but inability, then it’s welcome.) As the court dithers over whether affirmative action is allowed, the public is increasingly deciding that it’s not necessary — not just in Michigan, where the 2006 vote was not close, but in the U.S. as a whole.
The public may well be wrong about that. Affirmative action programs still have a crucial role to play in helping public institutions reflect America’s diversity. Yet they are not the only way. Programs that focus on class instead of race can have similar benefits. And there is evidence that colleges that make a concerted effort to attract poor and minority students can achieve results.
Whether affirmative action has outlived its usefulness, however, is not a constitutional issue. As the public debate increasingly turns to that question, the court’s convoluted jurisprudence may come to be seen as not just irrelevant but forgivable as well: It’s a hard question, after all, and the discussion can quickly careen out of control.
Just ask Chief Justice John Roberts, who was reduced to pleading with his fellow justices to be nice to one another in an elegiac 300-word concurrence that both illustrates and justifies the court’s failure to resolve this decades-long American argument over race. “People can disagree in good faith on this issue,” he wrote, as much to the general public as to his colleagues. “But it similarly does more harm than good to question the openness and candor of those on the other side of the debate.”