Justice John Paul Stevens had it right back in 1978. The Supreme Court shouldn’t have ruled that colleges’ affirmative-action programs are unconstitutional. It should have ruled that they’re illegal.
Stevens argued that the court did not need to answer that question to decide the case. “Our settled practice,” he wrote, “is to avoid the decision of a constitutional issue if a case can be fairly decided on a statutory ground.” The Civil Rights Act of 1964 provided just such a statutory ground: It forbids any institution receiving federal money from subjecting any person to discrimination based on race. It does not say that such discrimination may be allowed to rectify the effects of past discrimination, or to construct demographically representative student bodies, or to secure educational benefits from racial diversity. It flatly prohibits it.
That’s what the court should have said 45 years ago, and what it should have said this year, too. But Stevens did not prevail. In Bakke, five justices wriggled free of the text of law. The statute, they claimed in two separate opinions, was an attempt to vindicate the 14th Amendment, and it was up to the justices to say what the amendment’s guarantee of equality means. If they decided the amendment allows discrimination for supposedly benign purposes, then that’s what the statute allows, too.
Ever since then, arguments in court about affirmative action have continued to dwell on the Constitution rather than on the law Congress enacted. Stevens himself silently abandoned his initial opinion.