Marston on the affirmative action cases
Check out his post entitled “Curmudgeonly Thoughts on Grutter v. Bolllinger.” Here is an excerpt:
- am troubled by a few things in the opinion. First, Justice O’Connor seems all too willing to defer to the judgment of what she calls “major American businesses” and “the military” and their estimations of good public policy. Those of us who are interested in resisting the corporatization of the university should be skeptical of a Court that takes “major American businesses” at their word when they prefer any policy, especially if the Court seems to be deferring to their judgment about educational policy. And there is already too much deference to the military going on right now in American society. They should be under civilian control, not the other way around. In other words, even if you like the way such arguments cut right now, you might not like the result the next time around.
In addition, these sentences from O’Connor’s opinion make me really uncomfortable:
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In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.
Here the Court is trying to foster legitimate rule by appealing to a principle of merit in the selection of access to higher education. The visual metaphors here are quite stunning when you think about them: what is necessary is the appearance of openness and integrity.
And I agree, it really is stunning! O’Connor surely wrote carelessly (or much too candidly) when she said “legitimacy in the eyes of the citizenry.”
Update: Also, check out this post by John Eden on the Legal Theory Annex.