Re: Puzzles re: Grutter and Korematsu - is deference compatible with strict s...

[Robert Justin Lipkin]

In a message dated 6/25/2003 4:30:58 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

Contrast, Korematsu, for example, in which the Court simply accepted wholesale, without any justification,  government blanket assertions that the wholesale removal of an entire ethnic group from a five state area was necessary to protect national security interest.  I agree Korematsu's deferential review was not strict scrutiny, and maybe Grutter arguably goes too far. But that doesn't mean that strict scrutiny precludes all deference.

       But perhaps it should. The problem with the "degrees of deference" position is that is begins to collapse the distinction between the different levels of scrutiny. Consider Justice O'Connor's opinion in Grutter. In section IIIA, Justice O'Connor writes "the Law School asks us to recognize, in the context of higher education, a compelling state interest in student body diversity." She then argues against the notion that Bakke forecloses using diversity in this manner or that language in subsequent cases do also. Get ready for the denouement: "Today, we hold that the Law School has a compelling interest in attaining a diverse student body." At this point, one would expect  skepticism, namely, something about how often the government has used race to stigmatize and restrict minorities, etc. Instead of such skepticism Justice O'Connor's insists that "[t]the Law School's educational judgment that such diversity is essential to its education mission is one to which we defer." At this point when I first read the opinion I lost my breadth. Is this same Justice O'Connor who wrote Adarand and rejected the distinction between benign and invidious discrimination because strict scrutiny of any racial classification is required to smoke out the invidious motive? I do not find any skepticism here at all.

       The problem with such terms as subtle, nuance, judgment, and degrees of whatever is that these features of discursive discourse are too much like the best of political reasoning. It raises the issue that if this is what courts do they need to be significantly (directly?) accountable to the electorate in a deliberative democracy or a republic. That's the only guarantee that the electorate is truly engaged in self-rule.

       Don't get me wrong. I'm in favor of affirmative action, but for the right reasons, namely, to attempt to remedy incrementally our dreadful racial history. And speaking bluntly, I find offensive the use of race in diversity as the only compelling interest the Court will allow. It seems to me that race can be used as a factor for reasons of diversity because that benefits whites as well.

Bobby Lipkin
Widener University School of Law
Delaware