Choosing Judicial Activism Over Originalism

Forum: Debating Antonin Scalia’s record on race and education



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FALL 2017 / VOL. 17, NO. 4

Justice Antonin Scalia was a staunch proponent of “originalism” in constitutional jurisprudence, an approach to deciding cases based on constitutional text as it was originally understood by its authors. Although he would occasionally follow precedent instead of the original understanding of constitutional text, Scalia argued that, in general, originalism was the only principled way for judges to avoid enshrining their own policy preferences into the law. He chastised those who instead believed in a “living” Constitution, which Scalia argued was simply a rationalization for “results-oriented” judges to decide cases however they chose.

In some high-profile cases, Scalia followed originalism even when it led to results that he almost certainly did not favor as a matter of policy. In Texas v. Johnson (1989), for example, Scalia joined the majority in striking down laws prohibiting the desecration of the American flag, an act he despised but that he nevertheless concluded was protected by the First Amendment.

But his education cases—particularly those relating to the use of race in student-assignment and admissions policies in K–12 and higher education—paint a different picture. In these cases, Scalia was faithful neither to originalism nor to precedent. Indeed, these cases show a justice who seemed just as results-oriented as the judges and justices he scolded.

Three cases in particular illustrate this point. The first two are Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), companion cases out of Michigan, in which the court struck down the University of Michigan’s affirmative-action plan for undergraduate admissions but upheld the law school’s admissions plan. The undergraduate plan used a numerical formula for considering race in admissions decisions, while the law school policy considered race as an undefined factor among many criteria. Scalia wrote a separate opinion in both cases, agreeing with the decision to strike down the university’s undergraduate-admissions plan and disagreeing with the decision to uphold the law school’s plan. The third case is Parents Involved v. Seattle School District (2007), in which the court limited the ability of school districts to explicitly consider race when attempting to integrate schools. Scalia did not write separately but joined in full the plurality opinion authored by Chief Justice John Roberts.

“Faint-Hearted Originalist”

I will start with Gratz and Grutter. Scalia’s view of affirmative action, generally, was that it was impermissible except to remedy a specific, identifiable harm. As many commentators have convincingly explained, it is difficult to square this position with the original understanding of the Fourteenth Amendment’s equal protection clause (see Eric Schnapper’s “Affirmative Action and the Legislative History of the Fourteenth Amendment”; Michael Klarman’s “Brown, Originalism, and Constitutional Theory”; and Jed Rubenfeld’s “Affirmative Action”). The conventional view among historians appears to be that the equal protection clause, as originally understood, would not have prevented states from helping African Americans as opposed to hurting them. There are historians who would disagree, undoubtedly, which makes Scalia’s failure even to engage in the historical debate genuinely puzzling. Remarkably, in some of the most high-profile cases the court ever heard—namely, cases involving race-based affirmative action—Scalia never offered an originalist defense of his views.

Scalia instead made simple, bare assertions about the meaning of the Constitution. A good example comes in his last line in Grutter, where he asserts that “the Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” But this statement is oversimplified and inaccurate, and it fails to acknowledge that what counts as unconstitutional “discrimination” is a complicated question. There is no provision in the Constitution that explicitly prohibits any and all consideration of race; there is simply the equal protection clause in section one of the Fourteenth Amendment, which does not say a word about race. That clause vaguely says that no state shall deny to any person “the equal protection of the laws.” This principle is not self-enforcing but requires choices about the kinds of “discrimination” that are allowed and the kinds that are not. For instance, people who violate speeding laws are fined or arrested, while law-abiding drivers are not. The two groups are treated differently, but no one would ever think this sort of “discrimination” is prohibited, because it is obviously justified.

One would expect an originalist like Scalia to abide by the choices contemplated and understood in 1868, when the Fourteenth Amendment was ratified. In other words, an originalist would proscribe the sort of discrimination that was originally understood to be prohibited by the equal protection clause and tolerate the rest. As mentioned above, most historians appear to believe that the original, common understanding of the clause is that it permitted various kinds of discrimination on the basis of race, including “discrimination” in favor of African Americans. One might therefore suppose that Scalia would have no problem with affirmative action, even if he personally considered it bad policy. This makes it even more surprising, and disappointing, that Scalia never attempted to defend his decision from an originalist perspective. And it raises the obvious question: why abandon originalism in this context?

Scalia once famously remarked that he was a “faint-hearted originalist,” meaning in part that he would sometimes forsake originalism in order to obey the command of stare decisis, that is, he would follow established precedent. In Grutter, however, Scalia ignored the original understanding of the equal protection clause not to follow precedent but to break from it. Rather than abide by the precedent of Regents v. Bakke (1978), which allowed for affirmative action within certain constraints, Scalia expressed categorical opposition to race-based affirmative action. In Grutter then, Scalia appears to have abandoned both originalism and precedent to arrive at his position.

That position, moreover, was entirely consistent with his stated “policy” views about affirmative action. Scalia was not a fan of race-based affirmative action, as he had spelled out publicly (and sharply) before becoming a justice. One can agree or disagree with that policy position, of course. But to ignore originalism and break from precedent to reach a result that is consistent with a personal policy preference is difficult to defend as legally principled. This is not to say, of course, that Scalia’s view of affirmative action policy was itself unprincipled; reasonable people can and do disagree on the legal, moral, and practical merits of affirmative action. But in cases like Texas v. Johnson, Scalia remained true to his legal principles and struck down an anti–flag-burning law that, as a matter of policy, he obviously favored. Why he seems to have abandoned those principles when it came to affirmative action remains a mystery.

Voluntary Integration

One sees a similar approach in Parents Involved, which presented the question of whether K–12 schools could take voluntary steps toward integration, that is, whether and when schools could consider race in student assignments. In Parents Involved, Scalia joined the plurality opinion of Roberts, who took the categorical view that race can never be taken into account, even when districts are trying to integrate schools rather than segregate them. (“The way to stop discriminating on the basis of race,” Chief Justice Roberts wrote, “is to stop discriminating on the basis of race.”) Roberts argued that this position was commanded by the Constitution and was consistent with Brown v. Board of Education (1954), which in Roberts’s view was not about school integration but about prohibiting any use of race in school assignments, regardless of the purpose.

Here again, one finds Scalia willing to abandon originalism not to follow precedent but to break from it (or at least to make new law). Critics of originalism such as Michael Klarman have pointed out that Brown is difficult to justify on originalist grounds, as there is little evidence that the equal protection clause was originally understood to outlaw school segregation. If Brown cannot be justified on originalist grounds, some scholars contend, then originalism should be rejected, because Brown is a seminal case whose outcome has overwhelming support in our society—both legally and morally. Over time, Scalia responded in different ways to this contention, sometimes suggesting that critics were right about Brown but wrong in concluding that it discredited originalism, at other times suggesting that Justice John Marshall Harlan’s dissent in Plessy v. Ferguson (1896)—arguing for a colorblind constitution—captured the correct original understanding. Neither of his responses, however, justifies his position on voluntary integration.

To begin, many legal historians and constitutional scholars seem to agree that the equal protection clause, as originally understood, did not prohibit segregation, because integration—including integrated schools—involved a “social” right, not a civil right, and therefore fell outside the ambit of that clause. Scalia, as mentioned above, sometimes seemed to accept this argument and agreed that the original understanding of the equal protection clause could not justify the outcome in Brown. But in his view, it did not follow that originalism should be rejected out of hand. Yet if the equal protection clause does not apply to school segregation, it obviously would not prohibit the voluntary integration of schools, either. Under this view, states would be free either to segregate or integrate.

On the other hand, if school segregation was indeed incompatible with the original understanding of the equal protection clause, there are only two possible rationales for this view. The first is that the equal protection clause was actually intended to prohibit the perpetuation of a caste system, and that school segregation was obviously attempting to perpetuate a racial caste system. Attempts to break down that system—whether through courts or legislatures—would then be consistent with the original understanding. School segregation would be prohibited, but school integration would be tolerated—indeed, encouraged.

The second possible rationale is the notion that the equal protection clause requires colorblindness and prohibits any and all uses of race. The argument for colorblindness in this context, however, is no different from the argument used against race-based affirmative action. As mentioned, most historians seem to believe that argument is false and, again, Scalia never tried to make the originalist case that race cannot be taken into account even when the government seeks to help, not hurt, African Americans. Harlan’s dissent in Plessy, despite his rhetoric about a colorblind Constitution, hardly settles the issue; indeed, Harlan himself indicated in another opinion and in his extrajudicial writings that he believed school segregation was constitutional.

No matter how you approach it, then, when it came to voluntary integration, Scalia abandoned what a commitment to originalism would appear to require. He did not do so, moreover, in order to follow the clear command of precedent. First, the idea that voluntary integration is inconsistent with Brown, which Roberts suggested in the plurality opinion Scalia joined, is implausible. Brown dismantled state-enforced segregation with the expectation that doing so would lead to integrated schools. The whole thrust of Brown was that segregation was actually harmful to students, not that the use of race itself was always and everywhere to be rejected. In addition, the idea that legislatures would take voluntary efforts to integrate schools would have seemed far-fetched at the time of Brown. The related idea that the justices who voted in Brown, or the lawyers who argued against segregation, would have had objections to voluntary efforts to integrate seems equally implausible.

Just how implausible is demonstrated in Swann v. Charlotte-Mecklenburg (1971), the second precedent rejected by Roberts and Scalia. In that case, the court approved the use of busing to desegregate schools under court order. Writing for a unanimous court, Chief Justice Warren Burger explained that the case involved the limits of judicial authority, and he sought to distinguish the scope of judicial authority from the authority of school officials. In a telling passage, he wrote:

School authorities are traditionally charged with broad power to formulate and implement educational policy, and might well conclude, for example, that, in order to prepare students to live in a pluralistic society, each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court.

Roberts did not have a convincing explanation as to why the court would have made this plain statement in a unanimous opinion if it were not obvious to the court in 1971 that this was the proper understanding of Brown. And it was this statement, as much as anything, that was behind Justice John Paul Stevens’s observation in his dissenting opinion in Parents Involved that no member of the court he joined in 1975 would have agreed with Roberts—and Scalia—that explicitly race-based voluntary integration is categorically prohibited.

It remains a puzzle why Scalia was willing to abandon originalism in some cases but not in others, even when, as in the flag-burning case, the originalist approach led to outcomes that he almost certainly disfavored personally. It also necessarily raises the question of whether Scalia’s commitment to originalism was principled, strategic, or a bit of both. At the very least, these three politically charged education cases complicate the picture of a jurist best known for a methodology—originalism—that was strikingly absent in these contexts.

This essay is abridged from a chapter in the forthcoming volume Scalia’s Constitution: Essays on Law and Education, edited by Paul E. Peterson and Michael W. McConnell, Palgrave Macmillan, 2018.

This is part of a forum on Antonin Scalia’s record on race and education. For an alternate take, see “Equal Protection Bars Racial Favoritism” by R. Shep Melnick.




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