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

[Robert Justin Lipkin]

In a message dated 6/27/2003 2:05:33 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

Here, no such evidence of bad Michigan motivation to distrust their judgment here.

������ The problem, of course, is that deference generally precludes engaging in just the kind of scrutiny that will uncover bad motivations at the heart of a process that on the surface doesn't appear to include any. What Justice O'Connor fails to engage in is the sort of skeptical examination--which she insists upon in Adarand--of the Law School's use of race which is most likely to reveal these bad motivations. Instead, she writes an advocate's brief in favor of the Law School's plan. [Of course, Justice O'Connor is not the first Justice to write an opinion that sounds more like advocacy than a searching examination of both the pros and the cons of public policy, nor is Grutter the first case in which a Justice does this. But this is a supreme failure when purportedly applying strict scrutiny.] At critical times--regarding the compelling interest portion of the test as well as the narrowly tailored part, she defers. Moreover, her deferential assertions are far from pellucid.� Consider: "We find that the Law School's admissions program bears the hallmarks of a narrowly tailored plan." Now what does "bears the hallmarks of a narrowly tailored plan" mean?� In section II B--beginning with "We have held . . " and ending with "suspect tool",� Justice O'Connor states the strict scrutiny test, but, in my mind, fails to apply it.

       My real beef with this opinion, as I stated in an earlier post, is that it doesn't embrace the need for explicit race-consciousness to incrementally begin an intentional program to remedy our shameful racial history.  Instead, it permits diversity to be the key to affirmative action plans apparently only because such plans also benefit whites. Please understand, I'm not opposed to multiple beneficiaries of affirmative action plans, just so long as the primary justification is that we, as a community, have brutalized African-Americans, and we now recognize--and seek to remedy if possible--our community's racial brutality.  The failure of individuals--who admittedly were in no way themselves responsible for racism--to assume responsibility for the unjust acts of their transtemporal political community, in my book, reveals a fundamental flaw in the American national character, to use a term toward which Wittgenstein, for good or bad reasons, would of course recoil. Of course, one can object that my argument is not really designed to reject diversity or deference, but in reality what I want is for Justice O'Connor to have written a different opinion validating affirmative action.  My response is that this objection is absolutely correct.

Bobby Lipkin
Widener University School of Law
Delaware