Girardeau A. Spann1Copyright © 2020 by Girardeau A. Spann. James and Catherine Denny Professor of Law, Georgetown University Law Center. I would like to thank Richard Chused, Lisa Heinzerling, Pat King, Mike Seidman, and Mark Tushnet for their help in developing the ideas expressed in this Essay. Research for this Essay was supported by a grant from the Georgetown University Law Center.
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A part of the series, Affirmative Action at a Crossroads.
The widespread, controversial protests against racial injustice that began in the spring of 2020 offer hope that U.S. culture may be evolving to a more sophisticated conception of racial equality. The contemporary clash between competing visions of race is illustrated perhaps most clearly in the debate about affirmative action—a debate that often occurs in the context of education. To date, the culture has acquiesced in Supreme Court resolution of the competing arguments. And the Court has become more hostile to affirmative action as its dominant voting bloc has become more conservative—a trend that seems likely to continue. When the Court invalidates an affirmative-action program, it is behaving in a countermajoritarian manner, even though it is difficult to find anything in the Constitution that justifies the judicial usurpation of racial policymaking power from the representative branches of government. Therefore, it is hard to understand why a democratic society would entrust the formulation of racial policy to a politically unaccountable Supreme Court—the history of which reveals a longstanding commitment to the interests of the White majority at the expense of racial minorities—unless it is because the culture tacitly knows that the Court will typically let the White majority win, thereby implicating the Court in the very system of racial discrimination on which it is asked to rule.
During what has been termed an “American Spring of Reckoning,” the distressingly cavalier murder of a Black man named George Floyd by a White Minneapolis police officer named Derek Chauvin prompted an unexpectedly prominent and sustained public outcry against the persistence of racism in the United States. Race-based statistical disparities concerning everything from police shootings of unarmed civilians to infection and death rates from the COVID-19 pandemic have come to alarm even White members of the American public. However, the Supreme Court reads the Constitution to prohibit only narrowly defined forms of intentional discrimination, thereby rendering largely irrelevant evidence of racially disparate impact—the term used to describe discriminatory effects. The question is whether the culture’s new-found concern for racial justice will last. Or whether—like the exuberance surrounding our prior constitutional moments—it will dissipate before it can be transformed into a “New Reconstruction” that offers a chance at meaningful racial equality.
If the culture’s current passion for racial equality is on the precipice of evolving into meaningful social change, rather than degenerate into mere transient rhetoric, the culture will have to retrieve its social policymaking power from the Supreme Court. The surest way for American culture, and its politically accountable representatives, to recapture political policymaking power is to insist that the Supreme Court defer to popular demands for racial equality. Prior to his unfortunate death in July 2020, civil rights hero John Lewis was fond of quoting the phrase “If not us, then who? If not now, then when?” In the midst of the current culture’s vocal objections to stark racial disparities, the “when” may actually be “now.” The frontal attack that I am advocating on the Supreme Court’s racial policies may seem like an unsettling attack on judicial review itself. But John Lewis had a quote for that too. He reminded us that we “have a moral obligation, a mission and a mandate, to speak up, speak out and get in good trouble.”
This Essay is an invitation for us to “get in good trouble” by rejecting the role that Supreme Court judicial review has stubbornly played in the formulation of the nation’s unjust race-relations policy. Part I describes the evolution of the Supreme Court’s affirmative-action jurisprudence, emphasizing the current Court’s efforts to minimize the significance of race in the context of education. Part II characterizes the Court’s adoption of an intentional-discrimination standard as a continuation of the Court’s longstanding effort to advance the interests of the White majority at the expense of racial minorities. Part III suggests that the widespread cultural dissatisfaction with racial disparities that has emerged in the wake of the George Floyd killing should prompt the Court to reconsider its dismissal of disparate impact. Notwithstanding common skepticism about the Federalist No. 78 claim that the judiciary is the least dangerous branch, the Essay concludes that a Supreme Court ultimately dependent on popular support may actually end up being subject to the will of the people.
I. Evolving Affirmative Action
The Supreme Court has read the Constitution to impose limits on the ways in which the United States can remedy its persistent problem of racial discrimination—a problem that has existed since before the country was founded. Many of the Court’s limits constrain the nation’s ability to adopt racial affirmative-action programs, often in the context of educational diversity. As the Court’s pertinent jurisprudence has evolved, its tolerance for affirmative action has fluctuated in ways that reflect the influence of its liberal or conservative voting blocs at particular points in time. And the Court’s current conservative majority has been noticeably hostile to affirmative-action efforts to advance the interests of racial minorities.
The affirmative-action debate has always been contentious. Proponents view affirmative action as necessary both to compensate for past inequalities and to promote the prospective diversity needed to facilitate the proper functioning of our increasingly multicultural society. Opponents view affirmative action as itself a form of racial discrimination that punishes Whites who are not themselves guilty of past discrimination in order to benefit minorities who were not themselves the victims of that discrimination, thereby undermining the society’s prospective commitment to the merit-based allocation of resources. In the past, I have tried to offer a detailed account of how the Supreme Court’s affirmative-action jurisprudence has evolved, and I have tried to address the major arguments and counterarguments that tend to arise in the affirmative-action debate. Here, I will briefly highlight the most salient aspects of the Court’s affirmative-action jurisprudence.
In its 1978 Regents of the University of California v. Bakke decision, a badly divided Supreme Court invalidated a race-conscious affirmative-action program that the University of California at Davis Medical School adopted to increase minority student enrollment. Justice Lewis Powell, speaking only for himself, wrote what ended up being the controlling opinion. Although he voted to invalidate the Davis program, he thought that some racial affirmative-action programs might be constitutional. He identified several factors that have come to be significant in assessing the constitutionality of affirmative action. He believed that strict scrutiny should be applied to the racial classifications inherent in affirmative action, meaning that plans could be constitutional only if they embodied narrowly tailored efforts to advance a compelling governmental interest. The two compelling interests he recognized were the retrospective provision of remedies for past discrimination, and the prospective promotion of future educational diversity. The Equal Protection Clause of the Fourteenth Amendment protected the individual rights of innocent Whites who might be burdened by affirmative action, so racial quotas were impermissible, as they deprived each applicant of the ability to compete for each available seat. Because the Equal Protection Clause conferred individual rather than group rights, affirmative action could not constitutionally be used as a remedy for general societal discrimination.
Justice William Brennan disagreed, arguing that intermediate scrutiny ought to be used for benign affirmative-action classifications, rather than the strict scrutiny that applies to invidious racial discrimination, so that a program should be upheld if it was substantially related to an important governmental interest. He stressed that Whites did not suffer a history of racial discrimination sufficient to make them a suspect class triggering strict scrutiny. He also believed that the goal of providing remedies for general societal discrimination was a constitutionally sufficient governmental interest, and that the need for racial quotas could be used as a factor in assessing the constitutionality of affirmative action. Justice Harry Blackmun’s opinion added that, in light of the nation’s long history of racial discrimination, race was a factor that now must be taken into account in order to achieve ultimate racial equality. Blackmun then stated famously that “[i]n order to get beyond racism, we must first take account of race. There is no other way.” The Bakke opinions largely established the terms of the ensuing cultural debate over the constitutionality of affirmative action.
Although the outcomes in early affirmative-action cases were dramatically inconsistent, the 1995 Adarand Constructors v. Peña decision concerning a federal minority construction set-aside held that the typically fatal strict scrutiny standard used for invidious discrimination would also apply to benign affirmative action. The Court’s more recent affirmative-action cases have involved programs designed to increase student racial diversity in educational contexts. On the same day in 2003, the Court decided two cases involving affirmative-action programs at the University of Michigan. Grutter v. Bollinger upheld the Michigan Law School plan under strict scrutiny, finding it to be narrowly tailored to the compelling interest in promoting student diversity. Citing Bakke, Justice Sandra Day O’Connor’s 5–4 majority opinion noted that the plan did not utilize racial quotas to promote racial balance—something that would be “patently unconstitutional.” Chief Justice William Rehnquist and Justice Anthony Kennedy dissented on the grounds that the plan was a veiled racial quota and was not narrowly tailored. In addition, Justices Antonin Scalia and Clarence Thomas asserted that diversity was not a compelling governmental interest, and Justice Thomas argued that affirmative action was merely about preserving the status of elite educational institutions. Then, in Gratz v. Bollinger, Chief Justice Rehnquist wrote a majority opinion invalidating the Michigan undergraduate affirmative-action program on the ground that it was not narrowly tailored. Because the two programs seem very similar, it became unclear what the narrow-tailoring requirement actually entailed.
After Chief Justice John Roberts and Justice Samuel Alito replaced Chief Justice Rehnquist and Justice O’Connor in 2005 and 2006, it appeared that there might be five votes on the Court to overrule Grutter and end most forms of affirmative action. Bolstering that view, Chief Justice Roberts wrote a majority opinion in the 2007 case of Parents Involved in Community Schools v. Seattle School District No. 1, invalidating race-conscious primary and secondary school student assignment programs in Seattle and Louisville that had been adopted to prevent resegregation of the schools caused by residential population shifts. Chief Justice Roberts held that the diversity interest recognized as compelling in Grutter applied only to higher education, and there was no lingering past de jure discrimination to remedy. In a plurality portion of the opinion, Chief Justice Roberts reasserted that the goal of racial balancing was patently unconstitutional, and he invoked Brown v. Board of Education for the proposition that the Constitution prohibited race from being considered in student assignment, even if the goal was to promote integration.
When the Court considered Fisher v. University of Texas at Austin—first in 2013 (Fisher I), and again after remand in 2016 (Fisher II)—opponents of affirmative action hoped that the Court would use the case as an opportunity to overrule Grutter. However, in Fisher II, Justice Kennedy—who had dissented in Grutter—upheld the Texas plan, finding it to be narrowly tailored. Justice Alito dissented, joined by Chief Justice Roberts and Justice Thomas. Although the Supreme Court did not use Fisher II as an opportunity to overrule Grutter, since the case was decided in 2016, Justices Neil Gorsuch and Brett Kavanaugh have replaced Justices Scalia and Kennedy. And this week, Amy Coney Barrett succeeded Justice Ruth Bader Ginsburg, who also voted with the majority in Fisher II. Accordingly, there may now be six votes on the Supreme Court to overrule Grutter, and effectively put an end to racial affirmative action.
If space permitted a fuller account of the Supreme Court’s affirmative-action evolution, it would show that the Court has vacillated with respect to a number of fundamental issues, including: the appropriate standard of review; the relative affirmative-action power of federal and nonfederal governments; the nature of the governmental interests that are sufficient to be deemed compelling; the showing of past discrimination that is necessary to trigger the government’s remedial interest; the educational level at which the governmental interest in student diversity becomes compelling; the degree to which race-neutral alternatives must be exhausted to achieve narrow tailoring; and the degree to which strict scrutiny is likely to be fatal.
In addition, the Court has made a number of striking assertions: the use of quotas in the pursuit of racial balance is patently unconstitutional; the Equal Protection Clause does not permit the culture to use race-conscious efforts to eliminate general societal discrimination; Brown v. Board of Education precludes the culture from using race in student assignments intended to prevent resegregation; and despite their dominant political power, members of the White majority still possess equal protection rights that shield them from the burdens of majoritarian affirmative action.
Moreover, the Court’s actions do not inspire confidence in the judicial process, because: the Court’s views on the constitutionality of affirmative action correlate very highly with the political and ideological preferences of the Justices; the outcomes in affirmative-action cases are largely determined by which Justices happen to be sitting on the Court when a particular case is decided; the meaning of the Constitution as it applies to affirmative action is often determined by the views of a single “swing” Justice; the current law of affirmative action is so unstable that it could be changed dramatically by the replacement of one Justice; and like its predecessors, the current Supreme Court does not seem to like racial minorities very much. All of this is a curious way to formulate racial policy in a culture that claims to be committed to the ideals of equality and the rule of law.
There seem to be at least three possible explanations for the Supreme Court’s hostility to affirmative action. First, the mere ideological preferences of the Court’s conservative majority might be the cause of the Court’s anti-affirmative-action views. If so, racial equality cannot be secured until the Court’s controlling ideology or membership is changed. Second, it might be that the Supreme Court is an institution tacitly committed to preserving White privilege, regardless of its membership or stated ideology. If so, racial equality cannot be obtained without changing the role that judicial review plays in our constitutional culture. Third, the Supreme Court may be accurately reflecting the racial preferences of the culture at large when it invalidates remedial affirmative action. If so, racial equality cannot be achieved without a fundamental change in the culture’s views on race itself. The Court’s personnel, ideology and institutional commitments seem unlikely to change on their own. But the culture’s current focus on disparate impact may be a harbinger of beneficial change.
II. Intentional White Supremacy
Although some have argued that the Supreme Court has done a better job than the representative branches in protecting the interests of racial minorities, I believe the Court’s resistance to racial affirmative action is part of a larger pattern of Supreme Court actions that have advanced the interests of Whites over the interests of racial minorities. Historically, the Court has taken such actions on multiple occasions. Lewis Steel famously described even the Warren Court as a group of “nine men in black who think White.” I have argued that a social function of the Supreme Court is actually to facilitate the sacrifice of racial minority interests in order to benefit the White majority. The Court accomplishes this by sanitizing racial discrimination in a way that makes it look neutral enough to satisfy the equality demands of the Constitution. In the context of affirmative action, the Court has limited the scope of constitutionally permissible programs to a narrowly defined concept of intentional discrimination, and has excluded affirmative action addressed to mere racially disparate impact. The ensuing sacrifice of racial minority interests for White majoritarian gain is, of course, a form of White supremacy. And it is a form of White supremacy in which the Supreme Court is deeply implicated.
In its early cases, the Supreme Court explicitly sacrificed minority interests for the benefit of the White majority. For example, in the 1842 case of Prigg v. Pennsylvania, the Court invoked the fugitive slave provisions of the Constitution and a federal statute to invalidate a Pennsylvania law that prohibited the forceable removal from the state of any person claimed to be an escaped slave without a prior hearing to establish ownership. The decision enabled continuation of the practice depicted in the 2013 historical movie 12 Years a Slave, whereby White slave dealers would kidnap free Blacks in the North and sell them into slavery in the South. In the infamous 1857 Dred Scott v. Sandford decision, the Court not only invalidated the federal 1820 Missouri Compromise Act limitations on the spread of slavery, but also held that Blacks could not be citizens within the meaning of the United States Constitution. The decision was one of the factors that lead to the Civil War, and its citizenship holding was overruled by the Fourteenth Amendment’s grant of natural-born citizenship—a grant that President Trump has said he would like to end.
After the War, The Civil Rights Cases invalidated the Civil Rights Act of 1875 provision that prohibited racial discrimination in public accommodations, finding a “state action” requirement in the Fourteenth Amendment that barred Congress from outlawing private acts of racial discrimination. In the 1896 case of Plessy v. Ferguson, the Court upheld the Jim Crow doctrine of separate-but-equal racial segregation. In its 1899 Cumming v. Board of Education decision, upholding a district’s provision of a public high school for Whites but no high school for Blacks, the Court revealed that separate did not actually have to be equal.
In the twentieth century, the 1944 Korematsu v. United States decision upheld a World War II exclusion order that led to the forced internment of Japanese-American citizens. In the 1954 Brown v. Board of Education decision, the Court invalidated the separate-but-equal doctrine that it had upheld in Plessy. However, in the 1955 Brown II decision focusing on remedy, the Court held that southern public schools only had to be desegregated “with all deliberate speed.” Little meaningful southern school desegregation occurred for the next ten years. Once the school desegregation movement began to move North and West, the 1973 decision in Keyes v. School District No. 1 held that the Constitution did not require the elimination of de facto segregation. In the 1974 Milliken v. Bradley, decision, the Court held that the de facto limitation prohibited interdistrict desegregation between inner-city and suburban districts, thereby precluding the possibility of any meaningful school desegregation outside the South. Today, most public schools remain badly segregated.
The Supreme Court preference for White over minority interests has tainted the law of affirmative action because most of the discrimination that affirmative action seeks to counteract simply does not “count” for constitutional purposes. In its 1976 Washington v. Davis decision, the Court held that only intentional discrimination—and not mere racially disparate impact—fell within the constitutional prohibition on racial discrimination. Then in its 1979 Personnel Administrator v. Feeney decision, the Court adopted a narrow definition of intentional discrimination that encompassed only a direct desire to engage in activity “because of” racial discrimination, not the mere desire to take an action “in spite of” its discriminatory effects. Moreover, as Dan Farber points out in his Constitutional Law casebook (pp. 349–53), the Court’s interpretation of intentional discrimination allows it to uphold actions whose incidental discriminatory effects burden racial minorities in ways that are indirect, but to invalidate affirmative action when equally indirect incidental burdens are imposed on Whites. Some Justices, including Marshall, Brennan, Blackmun, and Sotomayor have been sympathetic to the constitutional recognition of disparate impact. But the Court itself has not been.
As a result of all this, when the Supreme Court determines whether an affirmative-action program advances a compelling governmental interest in remedying prior discrimination, or in compensating for a lack of racial diversity, the de facto conditions that caused the need for affirmative action to begin with are constitutionally unavailable to justify the program. Therefore, the racially disparate maldistribution of societal benefits and burdens has become constitutionally irrelevant. Only intentional discrimination matters. And because most contemporary discrimination results from implicit bias or structural forces, most contemporary discrimination simply does not exist under the Court’s White supremacist conception of the Constitution.
III. Popular Disparate Impact
Disparate impact matters. A lot. Rectifying it could promote actual racial equality. Indeed, that is why the Supreme Court rejected a disparate impact standard under the Equal Protection Clause, and not only diluted, but threatened to invalidate, statutes that adopted such a standard. This is a threat that the Roberts Court made quite credible by invalidating the statistically-based Voting Rights Act of 1965. So, a worthy goal is to make disparate impact as relevant under the Constitution as it is in real life.
Although the Supreme Court often seeks to articulate the operative values of American culture, when it does so, it is exercising only a delegated power. The culture itself retains the power to ascribe meaning to its own fundamental values. Even a Supreme Court that does not believe in authentic equality for racial minorities will be unable to stand up against a culture that does. The widespread Black Lives Matter and other protest movements that have persisted since the police killing of George Floyd may reflect a cultural commitment to genuine racial equality.
If the culture’s passionate protests for racial equality are to evolve into meaningful social change, rather than degenerate into mere transient rhetoric, the culture will have to retrieve its social policymaking power from the Supreme Court. Although the Supreme Court claimed to have dispositive say over constitutional meaning in its 1958 Cooper v. Aaron decision, there are ways in which popular culture can override the Court’s self-asserted claim of finality. I have suggested a range of techniques that the political culture can employ to reclaim control over the meaning of its Constitution. They range from mild nonacquiescence, to more vigorous jurisdiction stripping, Court packing, and even threatened or actual constitutional amendments. The death of Justice Ruth Bader Ginsburg has revived interest in techniques that the political branches can use to limit the scope of Supreme Court power. Mark Tushnet has described the use of such tactics as playing “constitutional hardball”—a game in which political actors utilize constitutionally permissible procedures in novel ways that transcend established norms, in the hope of securing political change that is both partisan and durable. Constitutional hardball may occasionally even be sufficient to create a New Constitutional Order. Given the current Court’s hostility to racial affirmative action, supplanting judicial supremacy with popular constitutionalism may be essential in the culture’s populist efforts at Taking Back the Constitution.
By affirmative action, I do not mean the process of taking benefits such as university seats away from Whites who are entitled to them and redistributing them to minorities who are not. Although that characterization is widely advanced by opponents of affirmative action, it is one that simply smothers racial equality beneath a tacit baseline assumption that the current allocation of resources is itself fair and equitable—despite the long history of overt, implicit, and structural racism on which it rests. Rather, I view affirmative action as simply the process of eradicating ongoing discrimination. Affirmative action and antidiscrimination measures are, therefore, identical. This also seems to be the thinking behind the current Proposition 16 effort to repeal California’s infamous state-law ban on affirmative action.
Affirmative action will be most effective when it directly counteracts the statistical disparities that have always tainted the nation’s racial distribution of resources. But the effort to correct the continuing racial imbalance caused by societal discrimination is precisely what the Supreme Court has deemed to be “patently unconstitutional.” Just as Chief Justice Roberts oddly viewed Brown as prohibiting the integration of public schools, the Supreme Court oddly views the Constitution as prohibiting racial equality. It is that interpretation of the Constitution that I hope the culture has rejected during its “American Spring of Reckoning.”
To me, the most salient characteristic of the post–George Floyd protest movements, is the degree to which a majority of Whites have come to recognize disparate impact as the essence of racial discrimination. Initially focused on racial disparities in the myriad abusive or fatal police encounters with unarmed Blacks, supporters of the protest movements have now focused on the underlying forms of structural discrimination that have left Black and Brown people, Asian Americans, indigenous Indians, and other racial minorities systematically disadvantaged in their access to societal resources. Racially disparate impact encompasses access to the health resources implicated in the current COVID-19 pandemic, which has imposed disproportionate burdens on racial minorities high enough to prompt some jurisdictions to declare racism to be a public health crisis. In addition, statistical disparities in access to other resources is also both striking and vast. Indeed, racially disparate impact infects virtually all important aspects of the culture—including wealth, income, education, employment, health, housing, voting, and treatment by the criminal justice system.
I am not sure precisely how popular constitutionalism works when it manages successfully to change the Supreme Court’s stated interpretation of the Constitution. But I am confident that it does work. Many examples demonstrate that popular culture can mold the meaning of the Constitution in ways that override settled Supreme Court doctrine. The potency of popular constitutionalism is evidenced by the FDR New Deal Court packing plan; the wartime hysteria to which the Court succumbed, leading to the Japanese-American internment associated with Korematsu, despite the Court’s holding that suspect racial classifications were subject to strict scrutiny; the Court’s eventual post-Brown desegregation of southern schools that embarrassed the northern establishment and its foreign policy agenda; the Court’s later failure to desegregate northern schools in the face of opposition by White suburban parents; the Court’s fluctuating protection of abortion rights that seems to correlate with the views of the ideological groups who happen to be in power; the Court’s recent protection of LGBTQ+ rights in response to a shift in cultural attitudes about nontraditional sexual identities; and the support that the Court has recently shown for faith-based immunities from antidiscrimination laws in response to pressure from influential religious interest groups.
The evolution of the Court’s affirmative-action jurisprudence is too inconsistent, unstable, historically suspect, and doctrinally incoherent to warrant continued cultural deference. There is a vacuum in the constitutional meaning of the Equal Protection Clause that can be filled by a popular commitment to eradicating racially disparate impact. But the window of opportunity for the culture to effect meaningful constitutional change may be a narrow one. Once the momentum behind the culture’s current focus on racial injustice begins to dissipate, there is a danger that the culture will, once again, fall back on the myth that racial progress can be secured through rhetorical pronouncements rather than material gains. That is, of course, what happened in prior constitutional moments that promised the hope of equality, including adoption of the Declaration of Independence, the Constitution itself, and the Reconstruction Amendments, as well as the post-Brown civil rights movement.
Even after the graphic killing of George Floyd, there are still segments of the American population that violently contest the claim that Black Lives Matter. Ibram X. Kendi has emphasized that President Donald Trump now serves as the symbol for this disgruntled White opposition to emerging demands for multicultural racial equality. The conservative voting bloc of the Supreme Court has been enhanced by Trump’s addition of conservative Justices Gorsuch and Kavanaugh, which made conservative Chief Justice Roberts the Court’s current swing vote. That Court has often upheld Trump’s parochial vision of American culture in ways that seem sympathetic to Trump’s efforts to appeal to his xenophobic base and secure reelection as president in the 2020 election. The Court has not only upheld Trump’s Muslim travel ban, and some of his other harsh anti-immigrant policies, but it has helped shield him from political accountability for his policies prior to the election. The Court has refused to resolve before the election Trump’s politically controversial effort to eliminate Obamacare; delayed disclosure of Trump’s tax returns to Congress; allowed potential access to Trump’s business records only by a grand jury that is required by law to keep the records secret; upheld delayed implementation of a Florida voter initiative that was adopted to restore voting rights to ex-felons; refused a pandemic extension of the deadline for ballots; and reversed lower court decisions that have expanded voter access to the mail-in ballots that Trump fears may cost him the 2020 presidential election. In selecting an arbiter of constitutional meaning, given the choice between a Supreme Court so sympathetic to the icon of racial intolerance, and a popular culture now woke to the importance of disparate impact, why would anyone interested in racial equality ever choose the Court?
Affirmative action has been ineffective at addressing the persistent problem of racial discrimination in the United States because the Supreme Court will not permit affirmative-action efforts to remedy the problem of racially disparate impact. If meaningful movement toward racial equality is ever to occur, the preservation of disparate impact must be recognized as an unconstitutional form of racial discrimination. At this moment in time, popular culture seems willing to address the disparate impact of structural practices that have always disadvantaged racial minorities. But the Supreme Court’s treatment of disparate impact as constitutionally irrelevant will impede that culture’s ability to adopt remedial affirmative-action measures that redistribute resources to minorities. So, consistent with the theory of popular constitutionalism, the culture should itself change the meaning of the Equal Protection Clause in a way that demands distributional equality. The Supreme Court will resist, because one of its social functions is to preserve White privilege. But if the culture’s commitment to racial equality is genuine, the culture will ultimately win. Supreme Court Justices work for us; we do not work for them.
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Girardeau A. Spann is the James and Catherine Denny Professor of Law at Georgetown University Law Center. He thanks Richard Chused, Lisa Heinzerling, Pat King, Mike Seidman, and Mark Tushnet for their help in developing the ideas expressed in this Essay. Research for this Essay was supported by a grant from the Georgetown University Law Center.
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