A colleague of mine often quips about teaching reconstruction, the most difficult part of his legal history 
seminar. "So much promise, so little follow through" is his take on it. I’ve come to feel the same about affirmative action. Not because the end of affirmative action would compare to failed reconstruction, but because its impossible to adequately teach it in the first year Con Law curriculum. We get through the standard of review, and spend a few minutes debating the merits of "skepticism, consistency and congruence," but its impossible to distill three hundred years of relevant history and half a century of precedent into one or two 80 minute class sessions. And so I’m left to bounce the big theory questions off of my colleagues in the blogosphere.
Don’t go yet - I promise not to debate the merits of affirmative action or the wrong turns taken in Croson and Adarand. And I’ll spare you one of my favorite discussions - how the rhetoric of affirmative action cases seeks to rehabilitate whiteness in the face of rampant societal discrimination against people of color. (On the latter point see Cecil J. Hunt, II, The Color of Perspective: Affirmative Action and the Rhetoric of White Innocence, 11 Mich. J. Race & L. 477 (2006)). Instead, I’ll ask just one pointed question about one particular Justice: why is Justice O’Connor so skeptical of legislative motives in affirmative action cases when she is so deferential in other individual rights cases, specifically, those involving the Establishment Clause?
Consider one example.
The purpose behind a challenged statute can be dispositive in both First and Fourteenth Amendment cases. An Establishment Clause challenge to a "moment of silence" statute could turn on whether the legislature intended to "promote religion over non-religion" in a way that gave rise to a religious "endorsement." Likewise, an Equal Protection challenge to a race-based affirmative action program could turn on whether the legislature’s purpose was "invidious or benign" since only certain benign purposes qualify as constitutionally "compelling" under the appropriate standard of review.
The Court assumes that its ability to discern the true legislative purpose behind a particular statute inheres in its ability to identify hidden factors that might be at play. The investigation follows familiar protocols - relying on the statute’s articulated purpose or statements embedded in the drafting history, looking to whether a statute operates in practice as it was intended, or measuring the burdens imposed on competing interests. In Con Law parlance, the inquiry varies from one of "rationality" to "strict scrutiny" but in the end boils down to how much courts trust lawmakers to disclose their true objectives or, more precisely, how determined judges are to look beyond stated intentions.
In the affirmative action context, Justice O’Connor (and indeed a majority of the Court) is exceedingly skeptical of lawmakers. She explained in City of Richmond v. Croson that "absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." Based on this reasoning, she concluded in Adarand v. Pena that "unless Congress clearly articulates the need and basis for a racial classification, and [appropriately tailors the classification,] the Court should not uphold [an affirmative action] statute." In O’Connor’s view, it is not enough to presume, as Justice Stevens would have done, to know the difference between good intentions and bad, between statutes that "operate as an engine of oppression" and those that "foster equality in society." Only by applying strict scrutiny was she confident that the Court could ferret out invidious classifications that masquerade as benign.
The risk of legislative deception was also apparent in Wallace v. Jaffree, which involved an Establishment Clause challenge to Alabama’s moment of silence statute. O'Connor's concurring opinion acknowledged the possibility that "a legislature will enunciate a sham secular purpose for a statute," but nonetheless called for a "deferential and limited" inquiry into the legislature’s motive. Only if it is "beyond purview" that lawmakers intended to endorse religion, she said, should the statute be struck down.
O'Connor's "we know it when we see it" approach to religious endorsements in Wallace stands in sharp contrast to the skepticism she displayed when faced with legislative efforts to remedy past discrimination. Wallace, Croson and Adarand each acknowledge the difficulty of identifying unconstitutional motives, but only in Wallace was she confident in the Courts ability to "distinguish[] a sham purpose from a sincere one . . ."
I wouldn’t be the first to accuse O’Connor of picking favorites among claimed constitutional rights, or even plausible constitutional plaintiffs. But I can’t help but wonder whether that, at least in part, explains the inconsistency here. While its understandable that the constitutionality of a statute might turn on the weight of the legislative motive, its not clear why the measure of scrutiny a court undertakes to identify that motive should turn on the nature of the right at issue. And yet for O’Connor, it does.
Perhaps this mixes apples with oranges, as I have habit of doing. Or perhaps the focus on these three cases obscures the importance of more recent developments. After all, it was O’Connor who authored Grutter v. Bollinger, saving diversity-based affirmative action programs from an Equal Protection challenge even under strict scrutiny review. And she did vote to strike down a Ten Commandments display in McCreary County v. ACLU. There she joined the majority in demanding more than the government’s "transparent claim to secularity," and considered the historical evolution of the display relevant to the question of legislative purpose under the Establishment Clause. But in the end, maybe there is some value in comparing apples to oranges - establishment claims to equal protection challenges. Perhaps reflecting on Croson and Adarand against the backdrop of Wallace shows that we might gain some additional understanding of O’Connor’s affirmative action cases by actually looking beyond them.
-Kathleen A. Bergin
crosspost: The Faculty Lounge
