Group Rights, Judicial Review, and "Personal Motives"

Abstract

In his famous article "Groups and the Equal Protection Clause," Owen Fiss defends a novel interpretation of the Equal Protection Clause. Fiss proposes to replace the individualist interpretation of that Clause with an alternative view based on the so-called "group-disadvantaging principle." In Fiss opinion, the political process creates racial injustice that the judiciary may help to remedy through the use of that principle. He affirms: "The political status of the [Afro-Americans, in our society] justifies our willingness to allow those 'nine men' to substitute their judgment (about ends as well as means) for that of 'the people.' The socioeconomic position of the group supplies an additional reason for the judicial activism and also determines the content of the intervention- improvement of the status of that group."In my view, we cannot reasonably expect the judiciary to work for the "improvement of the status" of minority groups. This does not imply that we cannot have judges committed to the group-disadvantaging. However, whether that happens or not depends –in the end- on luck and not on any institutional arrangement. Fiss seems to dismiss this "motivational problem" (why would judges decide in the manner Fiss prescribes?). By contrast, the creators of the American Constitution properly recognized this problem. They wanted judges to adopt certain types of decisions, and they created certain institutional tools for motivating them in that direction. In this way, they took seriously a problem that most of us, presently, simply do not consider. We presently care about what certain public officers should do, but not about their "personal motives" for doing so. The aim of this essay is to try to re-connect these two questions.