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The first Republican president once said, "While the people retain their virtue and their vigilance, no administration by any extreme of wickedness or folly can seriously injure the government in the short space of four years." If Mr. Lincoln could see what's happened in these last three-and-a-half years, he might hedge a little on that statement.
-Ronald Reagan

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Wednesday, June 25, 2003
Judicial Activism

The recent affirmative action decisions contained this statement by O'Connor, writing for the majority:

The requirement that all race-conscious admissions programs have a termination point “assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.”

We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable. It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

This suggestion (also noted by Tapped) that affirmative action should be a temporary pracitice is uncontroversial. But Clarence Thomas made an interesting use of it in his dissent:

I agree with the Court's holding that racial discrimination in higher education admissions will be illegal in 25 years.

This statement takes some rather vague remarks by Justice O'Connor and labels them as what the language shows quite plainly they are not - a 'holding' that any form of affirmativbe action in college admissions will become impermissible in 25 years - and that that date is fixed and unchangable without regard to whether any progress towards racial equality in K - 12 education is made or even attempted in the intervening years. This deadline is in some ways reminiscent of the discussion of the first, second, and third trimesters in Roe v Wade, a discussion which conservatives regularly cite in charging that Roe v Wade was judicial overreach, sloppy reaosning, and legislating from the bench. But at least the trimester distinctions in Roe v Wade have some level of support in medical science; the 25 year rule that Thomas is creating here has no basis at all except for the fact that it is a round number, and that about 25 years have passed since the Bakke decision.

Justice Thomas, in order to further his own political agenda, has read language contrary to its plain meaning, has ruled gratuitously on a question not at issue, has endorsed a 'ruling' that was never made and, if made, could have no conceivable basis in any possible reading of the Constitution, has ignored the substantial legislative history indicating that numerous Congresses, including the Reconstruction Congress that originally drafted and passed the constitutional provisions under discussion, have supported some form of affirmative action, and has advocated the federal government managing how an entity of state government conducts its affairs. Conservatives used to have all sorts of nasty things to say about judges who did this, and usually less than this, to serve liberal ends, but don't hold your breath waiting for any criticism of judges who do the same to further conservative ends. So far Thomas has only been criticized, and that rather mildly, by Eugene Volokh, the most famously contrarian conservative/libertarian in blogdom.