Could Justice Scalia's Affirmative Action Dissent Become a Self-Fulfilling Prophecy?

Last week, on November 17, the United States Supreme Court decided not to accept review of a federal appellate ruling upholding Denver's affirmative action program for minority-owned and female-owned construction firms. Because the Supreme Court turns down vastly many more cases than it accepts for review, it does not ordinarily give any reasons for its decision. Following that practice, the Court did not explain its decision in the Denver case.

Yet Justice Scalia, joined by Chief Justice Rehnquist, was so incensed by the Court's action that he took the unusual step of publishing a dissent from the denial of review. In the dissent, he accused his colleagues of undermining the principle of "color-blindness" that the Court has found in the Fourteenth Amendment's Equal Protection Clause.

Ironically, however, if the Denver case undermines the color-blindness principle, that may be more the result of Justice Scalia's loud protestations than any decision of the Court's majority. Supreme Court denials of petitions for review set no precedent, but official pronouncements of two Supreme Court Justices--including the Chief Justice--tend to get noticed by the lower courts and the practicing bar.

Nor is this the first time that Justice Scalia has undermined positions he supports by painting a majority decision from which he dissented in extreme terms. Last June, for example, in Lawrence v. Texas, the Court invalidated a Texas law that barred same-sex sodomy, and Justice Scalia dissented. In that dissent, Scalia opined that the Court's ruling logically entailed state recognition of same-sex marriage. Last week, the Massachusetts Supreme Judicial Court took him at his word.

Make no mistake: Because I often find myself disagreeing with the substantive positions Justice Scalia takes, I'm delighted when he suggests that rulings of the majority have consequences that he rues and I welcome.

The question nonetheless remains--and it is a question perhaps better answered by a psychoanalyst than by a constitutional law professor--why on Earth Justice Scalia writes what he regards as parade-of-horribles dissents that risk becoming self-fulfilling prophecies.

Since the late 1970s, the federal government and the City of Denver have been concerned about the fact that relatively few minority-owned-business enterprises and female-owned-business enterprises are awarded contracts for construction projects in the city. Accordingly, the city has enacted and repeatedly amended an ordinance that sets percentage goals and imposes other requirements for contractors and sub-contractors on public projects.

In 1992, Concrete Works of Colorado, Inc., which is neither minority-owned nor female-owned, sued the City of Denver. It argued that by awarding preferences on the basis of race and sex, Denver had violated the Equal Protection Clause. In the intervening eleven years, the case has yo-yoed back and forth between the trial and appeals courts, while the city has repeatedly revised its contracting requirements.

Earlier this year, the appeals court ruled that Denver's affirmative action program was constitutional, because it was justified by historical and ongoing official discrimination, as well as by the city's desire not to act as a passive conduit for private discrimination.

The appeals court based that decision on the historical, statistical and anecdotal evidence contained in over three thousand pages of trial testimony, and over ten thousand pages of the appellate appendix. The court invoked the leading Supreme Court precedent dealing with local affirmative action programs in the construction trade: the 1989 ruling in Richmond v. J.A. Croson Co.

Justice Scalia's Dissent from the Supreme Court's Denial of Review

Croson established the principle of color-blindness, under which state and local affirmative action programs are judged by the demanding "strict scrutiny" test.

This is the same test that the courts apply to instances of official discrimination that burden traditionally disadvantaged groups. Thus, under Croson, blatantly racist or sexist programs face the same scrutiny as affirmative action programs.

The petition for Supreme Court review argued that the federal appellate court--the U.S. Court of Appeals for the Tenth Circuit--had misapplied Croson. In his dissent from the denial of review in the Denver case, Justice Scalia agreed. He opined that the court of appeals had paid mere lip service to the Croson precedent, departing from its spirit and letter.

Among other defects he saw in the appellate court's reasoning, Scalia thought that the court improperly placed the burden of proof on Concrete Works to disprove that the affirmative action program was justified. He said that, properly understood, Croson imposes upon the City of Denver the burden of proving that the program was justified.

Significantly, Justice Scalia added that his colleagues' willingness to let the appellate court's decision stand could be taken as an endorsement of that court's approach. "Coming on the heels of our decision last Term in" the Michigan affirmative action case, he said, "the Court's decision to let this plain disregard of Croson stand invites speculation that that case has effectively been overruled."

Yet if Justice Scalia had not published a dissent from denial of review in the Denver case, no informed Court-watcher would have interpreted the Justices' action as having any substantive significance at all. The Court frequently denies review for reasons having nothing to do with the merits--such as a complex procedural posture that may make it difficult to render a clear decision.

Thus, it is Scalia's vocal dissent--rather than the Court's silent denial of review--that invites speculation about the Court's commitment to Croson.

Justice Scalia shot himself in the foot in a similar fashion earlier this year in his dissent in Lawrence v. Texas. There, a six-Justice majority of the Court held that a Texas law prohibiting same-sex sodomy violated the constitutional rights of homosexual persons. In dissent, Justice Scalia complained that the majority's ruling called into question "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity."

To my knowledge, lawsuits challenging state prohibitions on adult incest, masturbation, and bestiality have not yet been filed. But last week, in Goodridge v. Dep't of Public Health, the highest court of Massachusetts did strike down a ban on same-sex marriage.

Although the Massachusetts decision was based on the state rather than the federal constitution, the court cited the Lawrence decision as relevant authority eleven separate times. It could not have been lost on the Massachusetts Supreme Judicial Court that no less an authority than Justice Scalia believed that Lawrence was directly on point.

Thus we return to our puzzle: Why does Justice Scalia repeatedly characterize decisions from which he dissents in ways that will likely give ammunition to those with whom he disagrees, enabling them to extend what he regards as improper precedents even further?

One possibility is tactical. Justice Scalia may think that if he doesn't point out the logical consequences of his colleagues' decisions, somebody else will. Our nation faces no shortage of creative lawyers who know how to read a Supreme Court opinion for all it's worth. Perhaps Justice Scalia reasons that he does his own causes no harm by skewering his colleagues with what he regards as the plainly undesirable consequences of their decisions.

But such tactics--if that is what they are--seem ill-advised. There is a world of difference between a lawyer arguing that a precedent entails some result and a Supreme Court Justice doing so. In the latter case--especially if the majority does not specifically respond to the dissenting Justice's parade of supposed horribles--it is a plausible inference that the majority accepts those results as consequences of the principle it has announced (and may not even find them so horrible after all).

Ultimately, Justice Scalia's pointed dissents in the Texas sodomy case and the Denver affirmative action case seem more the product of ill temper, than of careful tactics. But this hypothesis only deepens the puzzle, for Justice Scalia is not a man of ill temper. He is charming, witty, and often downright jovial.

At the risk of venturing into psychological speculation, I would offer the following very tentative hypothesis: Justice Scalia views his colleagues' approach to some issues--such as abortion, affirmative action, and gay rights--as not merely different from his own, but as fundamentally illegitimate.

A self-described "textualist" and "originalist" on such matters, Justice Scalia does not think his views represent simply one of several possibilities. He thinks they are the only possibility, entailed by the original understanding of the Constitution's text.

Thus, Justice Scalia does not think that color-blindness is merely, all things considered, the best interpretation of the Equal Protection Clause. Rather, he thinks that color-blindness is simply the meaning of the Equal Protection Clause--the only right, or even plausible, answer to the question of what the Clause entails.

Likewise, Justice Scalia does not think that the right of adults of whatever sex to engage in consensual sex is a plausible inference from the Constitution's language and history. To the contrary, he thinks the language and history rule out such an inference. And--crucially--he thinks that this must be obvious to any fair-minded reader of the Constitution. Again, he believes there is only one right, or even plausible, answer to what the Constitution says (or, here, does not say) on this issue.

Accordingly, when Justice Scalia dissents in abortion, affirmative action, and gay rights cases, he is not merely disagreeing with his colleagues. He is going further--and questioning the very legitimacy of, and authority for, their decisions.

Justice Scalia, it seems, believes that his colleagues in the majority are not engaged in fair-minded construction of the Constitution at all. In the face of what he regards as illegitimate substitution of policy preferences for judicial construction, Justice Scalia is not inclined to pull any of his punches--even if that makes it somewhat more likely that the results he deplores will come to pass.