THE AFFIRMATIVE ACTION WARS: The Clash Between Conservatives’ Positions Last Year And This Year On Whether The Executive Branch Should Defend A Federal Statute

Meanwhile, a district court in Michigan declared unconstitutional the affirmative action component of the University of Michigan Law School’s admissions policy. According to the district court, the University’s avowed interest in creating a diverse student body was not sufficiently "compelling" (to use the legal term of art) to justify a race-based preference in admissions. Two federal courts of appeals already are split over whether diversity can provide a constitutional basis for affirmative action and, thus, this issue also is very likely to be decided by the Supreme Court next term.

Possible changes in the Court’s makeup throw the likely outcome into doubt, and promise controversy. But one thing is certain: Conservatives who last year insisted that the Clinton Administration was compelled to support even dubiously constitutional federal statutes (such as the law repudiating Miranda), cannot in any principled way turn around this year and insist that the Bush Administration is not compelled to support the federal affirmative action statute.

Ordinarily, it would be easy to predict that the resolution of both issues will turn on the views of Justice Sandra Day O’Connor, who has been the swing vote in every Supreme Court affirmative action case for more than a decade.

In the past, Justice O’Connor has claimed to believe that affirmative action is constitutional under some circumstances. Still, she has never approved a race-based affirmative action plan; she wrote the opinion striking down the federal contracting set-aside last time it came to the Court (albeit in a different version); and she has been skeptical of "diversity" as a justification for affirmative action. In short, supporters of affirmative action have every reason to be nervous about how she will vote.

These are no ordinary times, however. Washington is rife with the rumor that Justice O’Connor will be retiring at the end of the current term. If that is true, President Bush is likely to nominate an opponent of affirmative action to the Court — in which case, the affirmative action issue will be crucial to the confirmation battle over O’Connor’s successor.

For these reasons, the Court’s future make-up, as well as its likely attitude towards affirmative action, remain somewhat uncertain. But one constant remains: when it comes to affirmative action, as with so many important legal issues these days, the conservatives will be engaged in a series of extraordinary intellectual contortions to advance their preferred views.

The contortions will begin inside the Bush Justice Department, which will have to decide whether to defend the federal affirmative action program in contracting before the Court or, instead, to "confess error" (that is, assert the prior, Clinton administration position is erroneous), and inform the Court that the statute authorizing the contracting set-aside is unconstitutional.

Some people think the Department should always defend a federal statute. Others think the Department should defend a federal statute unless it is so patently unconstitutional that no reasonable argument can be made in its defense. Still others think that the Executive Branch should exercise significant independent judgment about the constitutionality of federal law, and repudiate statutes accordingly.

Last year, many conservatives placed themselves firmly in the first or second of these three camps — that is, the camp of those who believe that the Department should zealously defend the constitutionality of every federal statute except perhaps where no rational defense can be mustered. The occasion was Dickerson v. United States, where DOJ had to decide whether to defend the federal statute directing federal courts to ignore the requirements of Miranda v. Arizona, the famous case requiring that defendants be "read their rights" beforehand if their confessions are to be accepted in court.

Since the statute’s passage in 1968, six Administrations — including those of Presidents Nixon, Reagan, and the elder Bush — had accepted Miranda’s requirements, and refused to follows the statute’s command that they ignore Miranda. Nonetheless, last year the U.S. Court of Appeals for the Fourth Circuit invoked the anti-Miranda statute to argued that a defendant’s un-Mirandized confession should still be able to be used against him in court. In so doing, the Fourth Circuit foisted the question of the anti-Miranda statute’s constitutionality on both the Clinton Administration and the Court.

Conservatives furiously lobbied the Clinton Justice Department to defend the anti-Miranda statute. In their view, a plausible argument could be mounted harmonizing the statute with the constitutional requirements of Miranda. Moreover, they asserted that it was DOJ’s duty to defend the anti-Miranda statute even if the Administration did not agree with statute, and believed instead that Miranda’s requirements should be followed. Finally, they excoriated the Clinton folks for advising the Court that the anti-Miranda statute was an unlawful congressional revision of the constitutional safeguards established in Miranda.

Fast forward to this week, and switch subjects to the affirmative action wars. There can be little doubt that a plausible argument can be made supporting the constitutionality of the federal affirmative action program for government contracting. Indeed, the U.S. Court of Appeals for the Tenth Circuit made just such an argument when it upheld the program in the case the Court has accepted for review.

Something tells me, though, that we won’t be hearing many conservatives talking about DOJ’s duty to defend federal statutes, even if DOJ doesn’t agree with them, this time around. Suddenly, they will discover that DOJ has a powerful duty to independently assess the constitutionality of federal laws — and that such an independent assessment has led DOJ rightly and properly to repudiate the federal affirmative action program before the Court.