Letter to the editor
The Morgan Hill Times, January 17, 1997
Regarding the Times’ comment in the Dec. 31 (1996) editorial that it is “highly doubtful” that the present Supreme Court will follow the precedent of the Seattle case, the basis of Judge Thelton Henderson’s temporary injunction against Proposition 209. That is certainly correct, but you fail to draw the obvious conclusion: Judge Henderson’s decision is flawed because it depends on a forecast of precisely that which is “highly doubtful,” namely that 209 will be rejected by the Supreme Court. It is virtually certain that at least five justices, Rehnquist, O’Connor, Scalia, Thomas and Kennedy, will uphold it if they get the chance.
Retirement of one or two of these (most likely Rehnquist and/or O’Connor) could change the balance, as you say, particularly considering the president’s opposition to 209. For this reason, your remark that the appellate courts should act “both with dispatch and, let’s hope, with unusual clarity” is surely a sentiment (at least the “with dispatch” part) not shared by other opponents of 209.
The plaintiff’s only way to win is almost certainly to delay the proceeding until at least one of those five retires. Considering their skill in manipulating the system, demonstrated by getting the case move to a former director of the ACLU, they will undoubtedly stretch it out. Meanwhile, they lose nothing because the status quo is maintained by the injunction.
The composition of the court was considerably different in 1982 when Seattle v. Washington was decided. It included Blackmun, Marshall and Brennan, three of the most activist judges of the present era. They were in the minority by 1989 when the court struck down a minority set-aside program in Richmond v. Croson. At that time, George Will remarked, “The Court is gingerly backing out of the swamp.”
They backed out further in 1993 in Shaw v. Reno, which outlawed racial gerrymandering in North Carolina. In that decision, Sandra Day O’Connor wrote:
Classifications of citizens based solely on race are by their nature odious, to a free people whose institutions are founded upon the doctrine of equality, because they threaten to stigmatize persons by reason of their membership in a racial group and to incite racial hostility.
That wording surely qualifies for the “unusual clarity,” if not the direction, you hope for. In fact, clarity, unusual or any other kind, is not possible in a decision going the other way because affirmative action is vague and arbitrary by definition. This fact was made unusually though unintentionally clear by Justice William Brennan in Johnson v. Transportation Agency, Santa Clara County (1987). In it he described the affirmative action plan as a “flexible, case-by-case approach,” a formula for exercise of arbitrary power that would be hard to beat. Brennan went on to state, amazingly, that it was “fully consistent” with Title VII of the Civil Rights Act of 1964.
The prospect of returning to that swamp of policy-making judges is quite depressing, but Clinton’s previous Supreme Court nominations do not give us reason for optimism.