Affirmative Action, Grutter v. Bollinger

[Emsworth]

The University of Michigan attempted to disguise its affirmative action program as a program to promote diversity. Essentially, the University was applying one set of standards to applicants of one race, but a different set of standards to applicants of another race. Surely, this involves a denial of "equal protection of the laws." The very core of the equal protection clause is the principle that the state cannot treat people differently on account of race.

The majority in this case sustained this program after applying "strict scrutiny," a test that has been invented by the judiciary and is found nowhere in the Constitution. Under this test, racial discrimination is unconstitutional unless it advances a "compelling state interest." Supposedly, promoting racial diversity is so important, so "compelling," that affirmative action must be constitutional. This approach, however, is deeply flawed. Firstly, the equal protection clause does not contain a "compelling state interest" exception; all racially discriminatory laws are unconstitutional, regardless of the interests they advance. Secondly, the compelling interest standard is not really a standard of judicial review, but a standard of political review. What differentiates a "compelling" interest from a "non-compelling" one? Only the personal opinion of a judge.

Sandra Day O'Connor even had the audacity to suggest that, "25 years from now," affirmative action will no longer be necessary to further a "compelling state interest." In other words, O'Connor proposes that the meaning of the Constitution will mystically change after 300 months. I find it difficult to fathom why so many consider her a model justice.

Unsound.