The San Jose Mercury News, November 28, 1996
Wednesday was a bad day for democracy in California. In a shootout between democracy and the courts, democracy lost.
In a display of arrogance of a height that only judges in our day are capable, U.S. District Judge Thelton Henderson ordered that implementation of Proposition 209 be suspended. To justify this action, Judge Henderson found merit in the lawsuit brought by the ACLU and other civil rights groups who claim that Prop. 209 is unconstitutional.
This event is being celebrated with great abandon by Prop. 209 opponents. They should think again. It was a test of who’s in charge, and the people came in a poor second. Their ox may be gored next time.
The ruling is a good example of the thesis of Robert Bork’s “Slouching Towards Gomorrah,” that the main threat to democracy in America is from the bureaucracy and the courts.
Proposition 209, voted on and approved by the people, is a pure and simple proclamation of non-discrimination. The ACLU’s 26,000-word brief that purports to show that the proposition is unconstitutional is a mass of tangle logic and sophistry without equal.
Undoubtedly, many will say that my position does not show proper respect for our legal procedures; that there are serious constitutional issues which must be explored, and so forth. That idea is wrong. It represents a habit of thought, a mode we’ve fallen into, where everything must be submitted to the courts for approval.
Judges have to decide every little thing: whose children get bused where, whether it’s OK to say “God” in school, how many of what skin color contractors must have, and so on.
Many state and local officials announced even before the ruling that they weren’t doing anything about Prop. 209 until the courts clarify it. They were paralyzed without detailed instructions from a judge.
A hopeful sign is that the vector of Appeals and Supreme Court decisions in the past few years makes it unlikely that Judge Henderson’s order (assuming he turns it into an injunction, which seems inevitable) will survive appeals. The trend toward increasing scrutiny of race-conscious actions by government is developing into a tsunami that will overwhelm Henderson and his colleagues in spirit in a few years if not sooner.
More specifically, consideration of race in college admissions was declared to be in violation of the Fourteenth Amendment in the Hopwood case this year by the Fifth Circuit Court of Appeals in Texas. If the logic of Hopwood attains the wide acceptance it deserves, Judge Henderson will be in the singular position of having accepted an argument that a law which outlaws something which is already unconstitutional is unconstitutional. Meanwhile, however, it appears that we will be forced to endure an ocean of insufferable nonsense from the ACLU and its allies before we can get to that conclusion.