Most Americans may not realize it, but the fate of affirmative action everywhere will be decided by five unelected judges this spring. In April, the Supreme Court is scheduled to consider the constitutionality of the University of Michigan’s undergraduate and law school affirmative action policies, both of which allow the consideration of race as one factor in the admission of some minority applicants.
The lawsuits — Gratz v. Bollinger, challenging Michigan’s undergraduate admissions policy, and Grutter v. Bollinger, challenging the law school’s policy — will present the Court with the question of affirmative action in the context of higher education for the first time since 1978, when the Court declared the quota system used by the medical school of the University of California at Davis unconstitutional.
On Dr. Martin Luther King Jr.’s 74thÊbirthday, President George W. Bush called on the Supreme Court to put an end to affirmative action. Bush condemned Michigan’s affirmative action policies as “quotas” that are “divisive, unfair, and impossible to square with the Constitution.” The president is simply incorrect. Despite the president’s political rhetoric, anyone who has spent just a few minutes studying the Michigan policies would easily recognize that neither the university nor the law school employs “quotas.” Unlike UC-Davis’s medical school admissions program at issue in the University of California Regents v. Bakke, the Michigan admissions policies do not pre-ordain that a set number of seats in the incoming class are to go to minorities, nor do they mandate the acceptance of any minorities for that matter. Moreover, the irony of Bush’s position is that the one alternative he offers the country, the “Texas 10 percent plan,” is in fact the very thing he detests: a quota.
The Supreme Court is our country’s highest court, and its decisions are the “law of the land.” As such, the effect of the Court’s opinion is not narrowly tailored to Michigan or any state for that matter. The Court’s opinions in the Michigan cases are as far-reaching as any made by the Congress or the president. As concerned citizens, we should treat the Court’s decision to hear oral arguments in the Gratz and Grutter cases no differently than if the Congress decided to introduce a bill to end affirmative action. The fact that it’s the “third” branch that has taken on this politically charged issue should not deter those of us with an opinion from influencing or participating in our democracy’s decision-making any more than if the Congress decided to consider the issue today.
From our perspective as citizens in a democracy, however, there are a number of differences between congressional and judicial decision-making. Most importantly, we do not have the same democratic access to the Supreme Court as we do to Congress. Unlike Congress, the Court will not solicit public opinion or even the opinions of the other branches of government. There will not be any public hearings in which members of the public or special interest organizations are invited to speak. The justices will not hold press conferences. Constituents will not have the opportunity to meet, call or write their elected representatives. And, because they have lifetime tenure, the justices of the Supreme Court cannot be held accountable by the people for their decision. The Constitution does not permit us to vote them off the Court even if we all disagree with their opinions. At its core, the shocking reality is that the Court’s power is virtually uncheckable. Five votes from nine unelected justices can determine the fate of affirmative action, fundamentally alter our national policies, and even select a president.
But despite its characterization as the weakest branch, the Supreme Court’s power is exceeded only by the Constitution’s mystery. A group of students from Harvard, Stanford, and my own Yale Law School, will submit a brief to the Supreme Court in support of affirmative action in Michigan and at every university in the country. As law students, this is the way we are trained to participate in the judicial decision-making process. But one does not need legal training to influence judicial decision-making, nor does the Constitution prohibit citizens from expressing their views directly to the justices of the Court. Just as if this was the Congress making a decision, nonprofit organizations, newspapers, corporations, educators and students should make their opinions known. Write the justices. Call them on the phone. Demonstrate in front of the Court. Do whatever democracy demands to preserve the values you cherish.
The time to act is now. We can’t wait for the Court to make its decision before we respond. Unlike the prolonged congressional decision-making process, the arguments for each of the Michigan cases will take place for one hour and then the justices will take a few short months before they hand down their decision. But as we saw with Bush v. Gore, by the time the Court rules, its decision is final. Short of a constitutional amendment or convincing the justices to reconsider affirmative action (an almost certain impossibility), their decision will govern us. As concerned citizens, we cannot wait until July to worry about affirmative action. By then, it will be too late.
Travis LeBlanc is a student at Yale Law School and the John F. Kennedy School of Government at Harvard.