Public Deliberation, Affirmative Action, and the Supreme Court

Abstract

In this Essay, I make a simple and somewhat impressionistic argument. I start with the suggestion that the issue of affirmative action should be settled democratically, not judicially. Certainly the Supreme Court should not invalidate most race-conscious remedial programs. But until recently, there has been little or no sustained democratic deliberation on the issue. The citizenry's ambivalence about-or hostility toward-affirmative action has been expressed mostly in private and not in public arenas. The enormous diversity of affirmative action programs, not to mention the separable justifications for and variable efficacy of each program, has not received much public attention. Some programs work well; some do not; and neither empirical data nor public judgments about their content and value have been reflected in program design. In these circumstances, the Supreme Court's apparently odd behavior-its meandering course, its refusal to issue rules-in the affirmative action context might be defended as performing a valuable catalytic function. The Court's willingness to hear a number of affirmative action cases, and its complex, rule-free, highly casuisticalI opinions, have had the salutary consequence of helping to stimulate public processes and directing the citizenry toward open discussion of underlying questions of policy and principle. In these ways, the Court's route has been far preferable to the most obvious alternatives: validation or invalidation of most affirmative action programs pursuant to clear doctrinal categories.