I have a review essay, “Beyond Bakke,” in the just-published Spring 2023 issue of the National Association of Scholars journal, Academic Questions. It is available online here.
I argued more forcefully in an older draft that the Court could reach an equitable result (in the now older sense of fair and just) in the pending Harvard and UNC affirmative action cases by “simply” relying on Title VI of the Civil Rights Act of 1964, but there will be both real and poetic justice if instead it goes beyond Title VI and revives the older liberal version of the 14th Amendment — that it embodies the principle of colorblind equality — discarded by today’s progressives.
Poetic, because …
Unlikely as it might appear in 2023, today’s defenders of affirmative action stand on the shoulders of dead racists. Justice John Marshall Harlan was wrong, they assert, to argue in Plessy that “our Constitution is colorblind.” They applaud, as the Harvard brief does, the success of the racists and “moderates” in the Thirty-ninth Congress who rejected colorblind language in the Fourteenth Amendment proposed by former abolitionists Charles Sumner, Thaddeus Stevens, and the radicals, “choosing instead to guarantee ‘equal protection’ rather than prohibit all distinctions based on race.” And what of more recent iconic liberals such as Hubert Humphrey, who did succeed in embedding colorblindness into Title VI and the rest of the 1964 Civil Rights Act? “The words of Senator Humphrey and his allies forswearing affirmative action should be understood as mere strategic feints,” Harvard law professor Randall Kennedy superciliously explains in his book, For Discrimination (2015), at best a reflection of the limitations “of early 1960s white racial liberalism . . . that regrettably underestimated the barriers” of continued racial discrimination….
[T]he Bakke judgment overturned or rejected opinions by two of the most liberal justices of the twentieth century … the holding of the California Supreme Court, whose 6-1 opinion written by Justice Stanley Mosk, widely regarded as one of the most impressive state court judges in the country, had held, “To uphold the University would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone.”
[Bakke] also rejected the powerful opinion by Justice William O. Douglas, probably the most liberal justice to serve on the Supreme Court in the twentieth century, four years earlier in DeFunis v. Odegard (1974), a case from the University of Washington law school that foreshadowed the issues in Bakke. “If discrimination based on race is constitutionally permissible when those who hold the reins can come up with ‘compelling’ reasons to justify it, then constitutional guarantees acquire an accordion-like quality,” Justice Douglas wrote.
“Since today’s progressives defend racial preference with the arguments of dead racists,” I concluded, “it would be ironic and fitting for the Court’s conservatives to revive the colorblind radical abolitionist tradition” that today’s progressives have abandoned.