By: Charles C. W. Cooke – nationalreview.com –
As we hurtle toward a resolution of the matter, I am struggling to intuit what the principled case could be in favor of the Supreme Court’s failing to strike down affirmative action this time. It seems to me that, irrespective of one’s preferred judicial philosophy, the logic leads inexorably to the Court’s nixing the practice. Originalist, non-originalist, “living constitutionalist” — whatever. Unless you truly think that the Court ought to just do what you personally prefer — or you think that Americans should be governed indefinitely by an unmoored and unelected Council of Experts — the outcome should be clear, no?
If you believe, as I do, that the law is the law, and that the Supreme Court’s job is to uphold it irrespective of public opinion, then you should believe that the Court ought to strike down affirmative action. The Civil Rights Act of 1964 holds that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” That describes pretty much every single college in the United States. As such, the Court ought to make clear on statutory grounds that all institutions of higher education “receiving Federal financial assistance” cannot exclude from participation, deny benefits to, or subject to discrimination anyone “on the ground of race, color, or national origin.” The Supreme Court is a court, not a legislature, and its role within the system is to uphold the law as written. Until such time as it does not, federal law bans affirmative action. The Court must, too.
And if you don’t believe that the law is the law — if, instead, you believe that the Constitution is “evolving” and that our statutes are “breathing” and that the Supreme Court ought to hew so closely to public opinion that, in effect, it serves as a third chamber of the federal legislature, then . . . well, you should believe that the Court ought to strike down affirmative action. As the New York Times has recently confirmed, when asked whether they agree with the contention that “Private colleges and universities should not be able to use race as a factor in admissions,” Americans concurred 69-31. Among Republicans, those numbers were 78-22. Among Independents, those numbers were 72-28. Among Democrats, they were 58-42. When the question was changed to publiccolleges and universities, Americans were even more emphatic. Overall, 74 percent agree that they “should not be able to use race as a factor in admissions,” with just 26 disagreeing. Among Republicans, those numbers were 88-12. Among independents, they were 75-25. Among Democrats, they were 60-40. Put whatever words you like in the description of the philosophy — “progressive law,” “living law,” “democratic law” — and the course will remain obvious. Affirmative action has to go.
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