Knowledge And Decisions

This is not a class action. The controversy is between two specific litigants.¹⁰¹

In Weber a very different majority likewise announced:

We emphasize at the outset the narrowness of our inquiry. Since the Kaiser-USWA plan does not involve state action, this case does not present an alleged violation of the Equal Protection Clause of the Constitution.¹⁰²

The traditional avoidance of unnecessary Constitutional decisions, when statutory law is sufficient, was in both cases carried to extremes by (1) ignoring government involvement in the substance of both quota decisions and (2) ignoring, and even boldly misstating, Congressional intent in the Civil Rights Act. Bakke had applied to a state-run medical school, and Weber had applied to a training program established under pressure from the Office of Federal Contract Compliance. Yet only Justice Powell addressed the issue of the Constitution’s requirement that government provide “equal protection of the laws.”

As for Congressional intent, the four concurring Justices in Bakke asserted that “Congress was not directly concerned with the legality of ‘reverse discrimination’ or ‘affirmative action’ programs”¹⁰³ when it was debating the Civil Rights Act of 1964. Yet one of those very same Justices (Rehnquist) later reported at great length, in a Weber case dissent, the numerous Congressional discussions of quotas and preferences, which were repeatedly, decisively, and emphatically rejected by Congress while writing the Civil Rights Act.¹⁰⁴ Why, then, the fictitious legislative history in Bakke? Its only effect was to provide a basis for judicial exegesis on a point allegedly neglected by Congress — in this case, creating a right to sue under the Civil Rights Act on a point for which no such right was provided in the Act itself.¹⁰⁵ This newly created right to sue made a statutory resolution of the issues possible, avoiding a constitutional precedent. Equally fictitious legislative history was invoked by a different set of Justices in the Weber case as a counterpoise to “a literal interpretation”¹⁰⁶ of what Congress had written in the Civil Rights Act, forbidding preferential treatment. Taking instead the “spirit” of that law and its “primary concern” for “the plight of the Negro in our economy,”¹⁰⁷ the Weber majority upheld the Kaiser quota which it repeatedly described as “voluntary,” despite the obvious pressure from the OFCC noted by both the trial court and the Court of Appeals.¹⁰⁸ The Kaiser quota system was in fact simply the government’s quota system imposed on a contractor.

In short, eight out of nine Justices — in two different cases before the identical court — chose to preserve the Court’s options to pick and choose “affirmative action” plans it liked or disliked, even at the cost of (1) pretending to enforce Congressional intentions it was directly countering, and (2) ignoring government involvement in the creation of the programs at issue. This is a very consistent pattern underlying these differently decided cases, and may have more momentous implications than the actual decision in either case.

The central presumption behind “affirmative action” quotas has not been addressed directly by the courts or by the administrative agencies. That presumption is that systemic patterns (“representation”) show either intentional actions (“discrimination”) or, at the very least, the consequences of behavior by “society” at large — rather than actions for which the group in question may be in any way or to any degree responsible, or patterns arising from demographic or cultural causes, or statistical artifacts. The issue is not the categorical dichotomy between “blaming the victim” and blaming “society.” It is an incremental question of multiple causation and perhaps multiple policy response.

More generally, the presumptive randomness of results selected as a baseline from which to measure discrimination is itself nowhere either empirically or logically demonstrated, and in many places and manners it is falsified. For example, even actions wholly within the discretion and control of each individual — choice of television programs to watch, card games to play, opinions to express to poll takers — show patterns that vary considerably by ethnicity, sex, region, educational level, etc. It is wholly arbitrary to exclude variations which originate within the group from any influence on results for the group.¹⁰⁹ It is equally arbitrary to assume that those variables that are morally most important are causally most important.