Perhaps the most exasperating aspect of racial discrimination in the United States is the self-righteous manner in which it is practiced. After a history of facilitating white exploitation of minority interests, the Supreme Court intimated in Grutter v. Bollinger that time was running out for racial minorities to take advantage of the opportunities for equality that the culture has offered in the form of affirmative action. Justice O'Connor's majority opinion seemed to say that in another twenty-five years, the Court would cease to tolerate such special favors for racial minorities, thereby leaving minorities only a limited amount of time remaining to discover some way out of the economic, political, and socially disadvantaged caste that they have been unable to escape for the past four hundred years. There are at least three problems with Grutter's sunset suggestion, all of which reflect the imprudence of delegating to the Supreme Court an active role in the formulation of racial policy.
Part I of this article discusses, Grutter's twenty-five year admonition, which might be intended either to serve as a mere rhetorical flourish, or to have substantive content. Regardless of the intent with which it was penned, the inclusion of such sunset language in the Court's opinion conveys the impression that the Supreme Court is disinclined to do anything meaningful to remedy the persistent problem of racial discrimination in the United States. Second, as Part II discusses, the concept of equality on which the Court's distaste for affirmative action rests is itself discriminatory, because it favors the interests of whites over the interests of racial minorities. Far from reducing the general societal discrimination that has long been the norm in United States culture, the Supreme Court's equal protection jurisprudence has inverted the theory of racial discrimination in a way that has caused the very concept of equality itself to become racially invidious. Third, as Part III discusses, even when the politically accountable arms of the culture do make efforts to promote the interests of racial minorities, the Supreme Court appears to believe that its governmental function is to nullify those efforts through the process of politically unaccountable judicial review. As a result, the post-Grutter agenda, for those who favor a more meaningful conception of equality, should be to spend the next twenty-five years promoting affirmative inaction by the Supreme Court in the realm of racial policy. This article concludes that the role of the Supreme Court in the formulation of racial policy can successfully be marginalized, but only if the culture at large genuinely favors racial equality.
50 How. L.J. 611-684 (2007)
Scholarly Commons Citation
Spann, Girardeau A., "Affirmative Inaction" (2007). Georgetown Law Faculty Publications and Other Works. Paper 802.