Opinion | Affirmative action should be illegal — not unconstitutional

Stevens argued that the court did not need to answer that question to decide the case. “Our settled practice,” he wrote, “is to avoid the decision of a constitutional issue if a case can be fairly decided on a statutory ground.” The Civil Rights Act of 1964 provided just such a statutory ground: It forbids any institution receiving federal money from subjecting any person to discrimination based on race. It does not say that such discrimination may be allowed to rectify the effects of past discrimination, or to construct demographically representative student bodies, or to secure educational benefits from racial diversity. It flatly prohibits it.

That’s what the court should have said 45 years ago, and what it should have said this year, too. But Stevens did not prevail. In Bakke, five justices wriggled free of the text of law. The statute, they claimed in two separate opinions, was an attempt to vindicate the 14th Amendment, and it was up to the justices to say what the amendment’s guarantee of equality means. If they decided the amendment allows discrimination for supposedly benign purposes, then that’s what the statute allows, too.

George F. Will: The court did not ‘end’ affirmative action. This was just a skirmish.

Ever since then, arguments in court about affirmative action have continued to dwell on the Constitution rather than on the law Congress enacted. Stevens himself silently abandoned his initial opinion.

The court’s new decision on affirmative action is also based on the Constitution. Six justices voted to hold that Harvard University and the University of North Carolina at Chapel Hill violated the equal protection clause. Chief Justice John G. Roberts Jr., writing for the majority, declined to separate the statutory and constitutional questions that Bakke fused. The dissenters are committed to the view that both the statute and the Constitution allow race-conscious admissions.

Justice Neil M. Gorsuch’s opinion comes closest to resurrecting the old Stevens argument. The Civil Rights Act has independent force, he argues, and forbids a thumb on the scale for any applicant based on race. But Gorsuch joined the majority’s constitutional holding, too.

It’s very likely that the text of the Civil Rights Act has been ignored in part because of the way the justices view precedent. They try to stick with past readings of statutes even more than with past readings of the Constitution. It would have been reasonable to break that habit here, though, both because Bakke misread the statute so badly and because its ruling was an unusual hybrid of constitutional and statutory interpretation.

Patient readers might be wondering what difference it would have made if the justices had made a statutory ruling against the universities rather than a constitutional one. Either way, they would have had to adopt race-neutral admissions.

The statutory option would, however, have had two advantages. First, it would have been more persuasive. The case that the Civil Rights Act bars discrimination based on race is open-and-shut. The case that the equal protection clause, with its more generalized phrasing, forbids it, especially when practiced by a private institution such as Harvard, is trickier. (Justice Clarence Thomas tries to establish the point with an originalist argument that seems to me only partially successful and won the endorsement of no other justice.)

Second, it would have been a humbler and more democratic decision. If the court ruled that Congress had outlawed university affirmative action programs, it would have left open the question whether Congress could reconsider that policy. Supporters of affirmative action would have had a legislative outlet for their concerns rather than being told that they would have to amend the Constitution or change the lineup of justices to get the policy they want.

Many polls show that race-based admissions are unpopular, so any such revision of the Civil Rights Act would be uphill sledding. The court might then never have had to decide whether Congress could embrace race-conscious admissions. In that scenario, it would have been clear that the problem for advocates of such policies is their inability to build a political consensus, rather than the obstruction of the justices.

Only two cheers for the court’s conservative majority, then, which has reached the right result via the wrong reasoning.