¹ 347 U.S. 483 (1954).

² 358 U.S. 1 (1958).

³ For fifteen years after the Brown decision, most of the Supreme Court decisions concerning racial discrimination were unanimous rulings. In recent years, decisions issued by a splintered court have become the norm.

⁴ 438 U.S. 265 (1978).

⁵ See Choper, , “Continued Uncertainty as to the Constitutionality of Remedial Racial Classifications: Identifying the Pieces of the Puzzle,” 72 Iowa L. Rev. 255 (1987).Google Scholar

⁶ Mishkin, , “The Uses of Ambivalence: Reflections on the Supreme Court and the Constitutionality of Affirmative Action,” 131 U. Pa. L. Rev. 906, 907 (1983).Google Scholar

⁷ A. Bickel, The Least Dangerous Branch 64–65 (1962).

⁸ Green v. County School Board, 391 U.S. 430 (1968).

⁹ 402 U.S. 1 (1970).

¹⁰ Griggs v. Duke Power Co., 401 U.S. 424 (1971).

¹¹ See, e.g., Fullilove v. Klutznick, 448 U.S. 448 at 475–476 (1980): “Our cases [citing Griggs, among others] express no doubt of the congressional authority to” address effects of discrimination in the absence of any prior finding of discrimination.

¹² See, e.g., Perry, , “Modern Equal Protection: A Conceptualization and Appraisal,” 79 Colum. L. Rev. 1023, 1048 (1979)Google Scholar: “One reason for subjecting any preferential program disadvantaging white persons [to] a heavier burden of justification is that such a program inevitably foments racial resentment and thereby strains the effort to gain wider acceptance for the principle of the moral equality of the races.” Compare Blasi, , “Bakke as Precedent: Does Mr. Justice Powell Have a Theory? ” 67 Calif. L. Rev. 21, 60 (1979)Google Scholar: “[I]t is almost always a bad thing for constitutional standards to be based on the purported perceptions of the populace regarding what is fair or rational rather than on well-considered and explicitly defended arguments respecting fairness and rationality. It is too easy to manufacture a ‘general belief’ or a ‘widespread feeling’.”

¹³ Conservative theorists argue that racial preferences for one type of work or another explain differential distribution in employment better than conclusions of discrimination. See, e.g., T. Sowell, Civil Rights: Rhetoric or Reality? (1984); N. Glazer, Affirmative Discrimination (1974). Yet so long as discrimination explains some proportion of racial differences in the distribution of jobs – and on that point, the evidence is conclusive – the liberals' dilemma remains.

¹⁴ 426 U.S. 229 (1976). In Davis, the Court upheld an employment test that had a markedly disparate racial impact (a 4:1 black-to-white failure rate) and had not been validated as job-related. See generally Freeman, , “Legitimizing Racial Discrimination Through Anti-discrimination Law,” 62 Minn. L. Rev. 1049 (1978).Google Scholar

¹⁵ This emphasis on demonstrating that segregation was deliberate posed no problems in the South, at least until recently, but it has raised serious questions concerning the scope of judicially mandated desegregation in the North. Compare Keyes v. School District No. 1, 413 U.S. 189 (1973), ordering district-wide desegregation based on a finding of deliberate discrimination in a significant portion of the district, with Milliken v. Bradley, 418 U.S. 717 (1974), overturning plans to address adventitious segregation in metropolitan areas.

¹⁶ See, e.g., D. Bell, Race, Racism and American Law 589–594 (1980).

¹⁷ While the Supreme Court continues to link race-conscious remedies to intentionality, at least in its rhetoric, e.g., Keyes v. School District No. 1, 413 U.S. 189 (1973), UJO v. Carey, 430 U.S. 144 (1977), to the extent that the judicial focus is on the effectiveness of the remedy being adopted, what is really being stressed is the result, not the intent. From this vantage, affirmative action is simply the way of making remedies effective by directly assuring the desired result.

¹⁸ See United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4 (1938), the opinion which first advances the rationale for heightened judicial scrutiny of legislation aimed at “discrete and insular minorities.”

¹⁹ 438 U.S. 265 (1978).

²⁰ The justices escaped having to decide this question several years earlier when, after accepting jurisdiction in De Funis v. Odegaard, 416 U.S. 312 (1974), they concluded that the case was moot.

In United Jewish Organizations v. Carey, 430 U.S. 144 (1977), decided the year before Bakke, the Supreme Court upheld, 8–1, an electoral redistricting plan that overtly relied on racial criteria to increase the number of majority-nonwhite districts – and hence, the lawmakers hoped, to increase minority representation in the state legislature.

²¹ Powell's argument is that student diversity is part of maintaining academic freedom, which has constitutional protection under the First Amendment, and is properly within a university's competence to value.

²² This “intermediate scrutiny” standard is the one applied by the Supreme Court in gender discrimination cases.

²³ 443 U.S. 193 (1979).

²⁴ One legally relevant distinction is the fact that Bakke is governed by the Constitution, Weber by Title VII of the 1964 Civil Rights Act. But the affirmative action opinions do not make plain the differences between the constitutional and statutory standard, or the rationale underlying those differences.

²⁵ 448 U.S. 448 (1980).

²⁶ R. Jackson, The Struggle for Judicial Supremacy (1941).

²⁷ Justice Powell's concurring opinion notes that “the effect of the set-aside is limited and so widely dispersed that its use is consistent with fundamental fairness,” even though he “reject[s] the suggestion that it is legally irrelevant.”

²⁸ Id. at 535 n. 5. “If the national government is to make a serious effort to define racial classes by criteria that can be administered objectively, it must study precedents such as the First Regulation to the Reichs Citizenship Law of November 14, 1935 [defining Jews].”

²⁹ Minnick v. California Department of Corrections, 452 U.S. 105 (1981), a case in which the Supreme Court granted certiorari but then held that there was no final judgment to review, and Bushey v. New York State Civil Service Commission, 733 F. 2d 220 (2d. Cir. 1984), cert, den., 469 U.S. 1117 (1985), a case the justices declined to hear, both raised a critical issue: under what circumstances a state agency may adopt a voluntary affirmative action plan.

³⁰ 467 U.S. 561, 104 S. Ct. 2576 (1984).

³¹ With a sarcasm rarely encountered in Supreme Court opinions, Justice Blackmun's opinion attacks the majority for reaching out for a case that ought not have been decided. “Having improperly asserted jurisdiction, the Court then ignores the proper standard of review … today's decision is provided on the theory that it might affect a defense that the city has not asserted in a suit that the union has not brought, to enforce contractual rights that may not exist.… After taking jurisdiction over a controversy that no longer exists, this Court reviews a decision that was never made.”

³² 476 U.S. 106 S. Ct. 1842 (1986).

³³ 478 U.S. _, 106 S. Ct. 3019 (1986).

³⁴ The majority dryly noted that the Solicitor General had earlier – that is, in earlier administrations – held a contrary position.

³⁵ 106 S. Ct. 3063 (1986).

³⁶ 107 S. Ct. 1053 (1987).

³⁷ 107 S. Ct. 1442 (1987).

³⁸ It is a common law commonplace that remedies enable the culpable party to make up for its own sins. But what about the institution, public or private, willing to do more than it is obliged under either common or constitutional law to do? The likeliest reason for this judicial limitation is a prudential concern to bound the reach of affirmative action remedies.

³⁹ Alstyne, Van, “Rites of Passage: Race, the Supreme Court, and the Constitution,” 46 U. Chi. L. Rev. 775, 809 (1979).Google Scholar For a sampling of legal opinion, pro and con, see W. Lockhart, Y. Kamisar, J. Choper & S. Shiffrin, Constitutional Law: Cases–Comments–Questions 1216–1255 (6th ed. 1986).

⁴⁰ A. Bickel, The Morality of Consent 133 (1975).

⁴¹ Both public employers' groups and business groups like the Chamber of Commerce have praised decisions such as Johnson. These rulings give them greater flexibility; they also make it less likely that voluntarily adopting an affirmative action plan will invite a lawsuit from a disgruntled nonminority (or male) employee.

⁴² The implications of Johnson on employer practices in this regard remain to be determined. The majority takes pains to point to the “manifest imbalance” in the representation of women in the relevant job category, and to note that the plan in question is both flexible and “temporary,” suggesting something far less than a blanket endorsement of voluntary affirmative action. What seems likely is a continuation of the pattern of case-by-case review.

⁴³ These laws were passed in the post-Reconstruction South to assure the separation of the races.