Well, not judicial review in the usual sense, but a superb review of Ackerman, The Civil Rights Revolution, by J. Harvie Wilkinson III, a sitting judge on the U.S. Court of Appeals for the Fourth Circuit. Judge Wilkinson, in effect, finds Ackerman’s main argument unconstitutional.
… Mr. Ackerman argues unblushingly that we should “grant full constitutional status to the landmark statutes of the civil rights revolution.” What does this mean? That these hybrid constitutional statutes should be permanently insulated from modification or amendment? Mr. Ackerman’s criteria for elevating a statute to permanent status are fuzzy, seemingly based on subjective judgments about when the public has coalesced adequately around a transcendent goal. To respect the enormous good achieved by these statutes isn’t to accept Mr. Ackerman’s attempt to blur one of the basic divides in U.S. law: that between constitutional mandate and enacted law.
Along the way Judge Wilkinson, a Virginia gentleman to the core, politely frowns on the Yale Law professor’s overheated language, noting that “[w]hat might have been a serious discussion” of Shelby County v. Holder, the recent decision barring the continued use of the old and outdated formula used to subject jurisdictions to “pre-clearance” under the Voting Rights Act, “is marred by intemperate criticisms, such as accusing the chief justice of ‘judicial hubris.'”
Actually, “judicial hubris” and criticizing the 1974 Milliken v. Bradley decision (where the Court refused to merge Detroit’s urban and surrounding county school districts into one system) as “tragic” are mild Ackermanian epithets. In a recent Los Angeles Times OpEd, for example, Prof. Ackerman laments that, just as the glory of Reconstruction was undone during the Gilded Age, “the arc of justice is now once again in sharp decline, during America’s Second Gilded Age,” and once again “[t]he Supreme Court is playing a leading role in this act of betrayal.”
What is even more striking than Prof. Ackerman’s accusation that the Roberts Court is guilty of an “act of betrayal” of civil rights — that sort of language, after all, is par for the professor’s course — is his pointing as a leading example to Schuette v. By Any Means Necessary, the recent decision holding that the citizens of Michigan did not violate the Equal Protection Clause of the Fourteenth Amendment when they amended their state constitution to prohibit state agencies, including university admissions offices, from discriminating against, or giving preferential treatment to, any individual based on race. (I have discussed the issues in that case here, and Justice Sotomayor’s dissent here and here.) Justice Breyer, who concurred, is also of necessity complicit in this betrayal, at least making Ackerman’s accusation bipartisan.
How, well, weird that someone who claims to want to “grant full constitutional status to the landmark statutes of the civil rights revolution” would regard an actual state constitutional amendment that echoes not only the spirit and intent but virtually the same language as the greatest of those statutes, the Civil Rights Act of 1964, as an “act of betrayal” of civil rights. Liberalism is certainly not what it used to be.
