The right-wing lawyers Reagan appointed to the Department of Justice early in his presidency promised a “Reagan revolution” in constitutional law. They tried to pack federal courts at all levels with judges who survived the most stringent political tests for judicial appointment ever used in this country; and they asked these judges to make decisions that would overturn decades of constitutional precedent and leave the Constitution no longer an important source of minority or individual rights against unjustified public authority.
The revolution is beginning to bear fruit. In its recent decisions the Supreme Court (which now seems safely in the hands of justices whom conservatives regard as politically correct) has repealed or undercut traditional constitutional rights in major respects. It has adopted new rules that sharply limit the number of times people sentenced to death can ask federal courts to look at fresh evidence or new arguments.1 It has decided that it may be merely “harmless error” for police to beat a confession out of a criminal defendant.2 It has rejected the use of plainly pertinent statistics in deciding whether race has played any role in a decision to execute a black defendant.3 It has granted states the power to restrict abortions in ways particularly harmful to poor women, and, most recently, in Rust v. Sullivan, it has approved as constitutional an executive order forbidding doctors in any clinic financed with federal funds to discuss or offer information about abortion, or to indicate where such information might be available, even for women who specifically ask to discuss abortion and have no other access to medical advice.4
The last of these decisions seems particularly appalling to constitutional scholars. For the first time the Court has upheld the power of government to impose restrictions not only on what people who accept government money might do with that money, which are often reasonable, but on what they may say in the performance of their professional duties, which strikes close to the nerve of free speech, particularly in a society like ours in which medicine, research, and education are so densely intertwined with governmental funding.
The Court did this, moreover, in a particularly crude way: it upheld a Reagan bureaucrat’s reinterpretation of a congressional statute that had always been understood not to carry that implication, in spite of the fact that, as Justice O’Connor pointed out in a stinging dissent, the Court traditionally avoids interpreting congressional acts in a way that would raise difficult constitutional issues unless Congress insists that it means to raise them. Congress can—and may very well—enact another statute declaring that the administration’s interpretation is wrong. But Bush can veto that statute, and a minority of legislators, who are “pro-life,” can sustain his veto.
Not just this decision, but each of those I have mentioned, is revolutionary: in each the Court has ignored decades of precedent, and each would have been inconceivable until recent years. (In 1981, for example, the other eight justices all voted against Justice Rehnquist’s attempt to limit the number of appeals from a death sentence.) Conservative lawyers say, however, that in spite of the fact that ordinarily past Court decisions should be respected, the new decisions are justified, indeed required, as a matter of law. They argue that the past decisions being overruled were illegitimate, the result of past efforts to amend the Constitution to serve a “left-liberal” point of view.
Charles Fried, Reagan’s last solicitor general, who recently announced his approval of the Rust decision, puts it this way in his interesting and instructive memoir of his years in office:
The tenets of the Reagan Revolution were clear: courts should be more disciplined, less adventurous and political in interpreting the law, especially the law of the Constitution….
But why should we accept that the Court’s new decisions are “more disciplined” or less “political” than its former ones? The key clauses of the Constitution’s Bill of Rights, after all, are very abstract: they say, for example, that “due process” is not to be denied, and that all people are to receive “equal protection of the laws,” but they do not specify what process is due or what counts as equal protection. The past decisions that the revolutionaries want to repeal were based not on ignoring these abstract clauses, but on interpreting them in a certain way. The earlier decisions supposed, for example, that convicting a person partly on the basis of a confession beaten out of him denies due process of law even if there is ample other evidence of his guilt. The Reagan revolutionaries interpret the abstract clauses of the Constitution very differently, but it begs the question simply to declare that their new interpretations are more accurate or less political than the old ones were. We need to ask what theory of constitutional interpretation would justify that assertion.
The most popular answer to that question, among the revolutionaries, was given by Reagan’s attorney general, Edwin Meese, and defended by Robert Bork, Reagan’s unsuccessful nominee to the Supreme Court. They said that the Constitution means only what its framers intended their abstract language to entail. It is true, Bork conceded, that present-day judges must exercise judgment in applying the general principles that the framers intended to new circumstances, like electronic wiretapping, for example. But the general principles themselves must be taken from those intentions, and it is plain, according to conservatives like Bork, that the framers intended no principle that would protect abortion or allow murderers to delay their execution through repeated appeals.
Fried, who has returned to his former job as professor of law at Harvard, ridicules this view of “original intention” and he is right. The framers’ opinions, he says, are both unknowable and, as they themselves thought, irrelevant. “It is a public text they put in force,” he adds, “and it is as a public text we must try to understand it.” Bork’s recent book, The Tempting of America, which tried to defend that view, was so spectacular a failure that, as I have suggested elsewhere, it may mark the end of the original intention thesis as a serious position among constitutional lawyers. 5
Fried also rejects a second argument that other conservative lawyers often make to justify overruling past decisions. They say that the earlier tradition was undemocratic, because when judges force states to permit abortion or to abandon programs or decisions that disadvantage minorities, for example, the judges are substituting their own judgment for that of democratically elected officials, and so restricting the power of the majority to govern itself. Fried replies, correctly, that crude majority rule has been the source of great tyranny in the past. In any case, this conservative argument begs the question of what our form of democracy, properly understood, really is. America’s principal contribution to political theory is a conception of democracy according to which the protection of individual rights is a precondition, not a compromise, of that form of government.
It is to Fried’s great credit, therefore, that he rejects the two most familiar defenses of the revolutionary decisions that he approves of. His book is important because he adopts a much more sophisticated and attractive thesis about constitutional interpretation. He says that judges enforcing the Constitution must interpret that document constructively, by trying to identify general principles of political morality that provide the best justification for the document not clause by clause but as a whole, conceived as a fundamental structure for just government. “In interpreting the broad language of the Fourteenth Amendment,” he says,
the Constitution as a whole should serve as a guide. The particular guarantees specified in the Bill of Rights are like the points on a graph, which the judge joins by a line to describe a coherent and rationally compelling function.
Fried concedes that this interpretive method will lead to different results in the hands of different judges, because judges whose convictions of political morality are different will connect the points with very different principles. It is the same method, he concedes, that produced Roe v. Wade, the famous abortion decision disliked by conservatives, which he says “gave legal reasoning a bad name” because it was based on a “morally inadequate vision,” and because its legal argument connecting that vision to the Constitution was deeply flawed. Still, he says, the interpretive method is the only defensible one, and good, conservative, legal reasoning consists not in using any different method but in using that method well, in grounding an overall constitutional interpretation in attractive and convincing conservative principles, and elaborating and applying these principles with logic and care.
So Fried’s project in this book—the project defined in its subtitle—is to argue for the Reagan revolution in a different way: to show how it can be justified not as the blind application of some rule about the framers’ intentions, or of some fetish about majority rule, but as the natural consequence of political principles that can plausibly be said to be embedded in the nation’s constitutional history. That is a project of the first importance. If we can identify a plausible conservative reading of the Constitution, a reading that purports to justify the Court’s new direction, then the national constitutional debate would be much improved. We could then decide which of the two competing visions—the new or the old—is more persuasive as an interpretive understanding of our constitutional history, or which side has been more successful in elaborating its vision into concrete legal decisions.
Order and Law is more, I should add, than a jurisprudential defense along those lines. Fried wrote it also as a political memoir, and it is a very good and useful one. With great candor he describes how, as a Harvard Law School professor with a conservative reputation, he campaigned for years for a job in the Reagan administration before he finally secured one; how he became acting solicitor general when the incumbent, Rex E. Lee, who had been criticized by conservatives as too independent of the administration’s policies, left; how he then deferred to the administration’s wish that he submit a brief in an abortion case asking the Supreme Court to overrule Roe v. Wade, in spite of the fact that no party in the case had asked for that step; and how he was appointed as solicitor general shortly thereafter, the abortion brief having put him “in a leadership position in the Department.” He recalls the political battles he fought and the enemies he made within the administration, and defends his view, which has been sharply criticized by other former holders of the office, that a solicitor general owes loyalty to the president’s own consitutional theories, as any lawyer owes loyalty to a client. The book is clear, lively, and exceptionally well-written. But its main ambition, and its importance, lie in its legal and philosophical argument.
That argument occupies the three chapters in which Fried discusses abortion, race, and the separation of powers. In the last of these, he argues that the independent counsel law, under which Congress appointed special prosecutors to investigate the Iran-contra and Wedtech scandals, was unconstitutional because the prosecutors were not appointed and could not be dismissed by the president; and he defends the Sentencing Guidelines Commission, which is appointed by the president but is declared to be part of the judiciary. His argument is of great theoretical interest, but he concedes that the Supreme Court has not accepted the position he believes to be the right one. The heart of his defense of the Reagan revolution is therefore in his chapters about abortion and race.
Fried was at the center of the administration’s campaign to persuade the Supreme Court to overrule Roe v.Wade: he argued that view in one case, as I said, as acting solicitor general and in another by special appointment after he had returned to Harvard. (Though the Court did not accept his argument in those cases, it might well do so in some other case soon.) Many of Roe v. Wade’s strongest critics accuse the justices who decided that case of simply inventing the right to privacy, which the justices said guaranteed choice about abortion in early pregnancy. According to these critics, since the Constitution nowhere mentions privacy, and since there is no evidence that the framers intended any such right, no such right exists.
Fried, on the other hand, accepts the right to privacy as a genuine and important one. He approves the main precedent on which the Court relied in Roe v. Wade: the 1965 decision, in Griswold v. Connecticut, that the states cannot forbid married couples the use of contraceptives.6 He also disapproves—and this is even more significant—the Court’s 1986 decision in Bowers v. Hardwick, which permitted states to make homosexuality between consenting adults a crime. (The decision in Bowers was 5–4, and a key member of the majority, Justice Powell, who has since retired, said recently in a lecture at New York University that he has changed his mind and now thinks the decision wrong.) Fried says that Justice White’s opinion for the majority in that case was “stunningly harsh,” and that even though homosexuality is widely thought immoral, and does not involve marital intimacy as contraception does, it is private conduct that the Constitution, properly interpreted, protects.
So Fried agrees that the Constitution recognizes a general right of freedom of choice in matters not directly affecting other people, freedom even to make choices others think immoral. But why, then, does he regard Roe v. Wade, which applied that principle to the case of abortion, so serious a mistake that it must be overruled though it has been in force for almost two decades? He recognizes the moral impulse behind that decision: he says that the Court was “evidently moved by the truly horrible spectacle of women—especially poor and ignorant women—suffering mutilation and death in desperate attempts to end unwanted pregnancies.” But he says that this “conviction of moral rectitude” does not rest on any “broad and simple and clear” moral principle. Why not? Why does it not rest on the broad, simple, and clear principle of privacy which makes legislation against homosexuals, in his view, unconstitutional? Why should not the same principle protect women from being made to suffer in a terrible way for abstract philosophical or ethical or religious views they do not share?
He offers only one argument in reply to these questions: he says that “the constitutional problem with abortion” is different because it “turns on whether the life of an innocent person is at stake.”7 Of course, if the Constitution, properly understood, does recognize a fetus as a person whose life is at stake, then abortion is indeed a very different matter in principle from homosexuality, and perhaps also from contraception. But the Supreme Court decided that the Constitution does not recognize a fetus as a person, and Fried accepts that conclusion as obviously right: he insists that the Constitution is neutral about abortion, which of course it would not be if it declared fetuses entitled to the benefit of the Fourteenth Amendment’s guarantee of equal protection of the law for all “persons.”
He argues, however, that even though the Constitution does not recognize fetuses as persons, it does not insist that they are not persons, so any state has the constitutional power to declare them persons within its own borders, and to prohibit abortion on that ground.8 He assumes, that is that a state has the power to add creatures to the category of persons whose rights may compete with, and justify restricting or compromising, the rights that the federal Constitution grants to others.
That is surely wrong: if a state had that power it could undercut the most fundamental rights granted by the national Constitution, simply by recognizing new persons. States might dilute the voting power of ordinary citizens by declaring corporations to be genuine persons, for example, who are also entitled to votes under the one-person-one-vote principle. It is essential to the whole idea of a national constitutional structure of rights that the full population of the constitutional community—those whose rights and interests could justify limiting the constitutionally protected rights of others—be fixed nationally. If women in principle have the same rights of privacy that Fried says married couples contemplating contraception or homosexuals do, then states cannot subvert those rights by inventing new persons, not so recognized under the national scheme of principle, whose own supposed rights then justify compromising that right of privacy.
So Fried’s single argument why abortion is a different matter seems very weak. It is also an argument that no one, not even the strongest critics of Roe v. Wade, actually believes. Rehnquist, who dissented in that case, conceded that it would be obviously unconstitutional for states to refuse a woman an abortion necessary to save her life. But a state would surely have that power if it had the power to designate a fetus a person: it would then, presumably, be free to follow the familiar rule that it is not permissible to take the life of one innocent person to save the life of another.9 And Fried himself, barely nine pages after he announces his view that states have the power to declare fetuses persons, makes plain that he does not really believe that either. In a quite extraordinary passage he imagines that after the Court has finally reversed Roe v. Wade, it might find an acceptable compromise that would defuse the abortion issue that now occupies so much judicial attention:
Having one day abandoned Roe, the Court may reasonably distinguish between statutes forbidding abortions outright and statutes requiring a delay of a few days in which a woman may consider alternatives to abortion, which the clinic is obliged to tell her about; or between statutes regulating abortion services and statutes punishing women who undergo abortions. This last is a distinction that might have considerable practical importance with the greater availability of safe, simple, self-administered pharmaceuticals to induce early-term abortions. In fact, medical discoveries might then make this whole constitutional episode moot.
If the Supreme Court accepted Fried’s announced view that a state has the power to declare a fetus a person, then it could not possibly make the distinctions he imagines and condones. How could it then decide that states can do no more, by way of protecting creatures that the states regard as persons, than just requiring women to wait a few days before killing them? How could the Supreme Court then justify a rule that allows states to make abortions in clinics and hospitals a crime, but not abortions that take place at home? What moral difference could the location of the abortion possibly make? And how, if a state had the power to declare a fetus a person, could the constitutional issue become moot just because science had discovered a way for a woman to abort herself with no one else’s help? Why should a state not be free to prohibit the prescription or sale, within its borders, of drugs whose only purpose is to kill someone the state regards as a person?
The bizarre and morally arbitrary compromises that Fried imagines suggest not only that he does not really believe his own explanation of why the right to privacy does not apply in the case of abortion but that his opposition to Roe v. Wade may not be based on principle at all. He acknowledges the Reagan administration’s concern with abortion as one of the “contradictions and cross-currents” in the revolution. “How does the impulse to reduce the intrusion of government into people’s lives work with the abortion issue?” he asks. And he says, at the end of the chapter, that he regrets the attention the Reagan administration gave to the abortion issue. He says the administration’s “apparent obsession with the subject distracted attention from what I conceive to have been its real project: restoring reasonableness and responsibility to the practice of judging”—an odd comment, because he had earlier described Roe v. Wade as a prime example of unreasonable and irresponsible judging.
It is hard to resist the conclusion that Fried actually saw the project of reversing Roe v. Wade as a narrowly political one: something that the administration had promised an important part of its constituency, and a goal that Fried, as lawyer for the administration, was therefore responsible for pursuing. In any case his attempt to base that project on constitutional principle, on an interpretation of the whole Constitution as a coherent system of moral rights, is a conspicuous failure.
Fried plainly has more personal enthusiasm for the second main element of the revolution he discusses: changing the law of racial discrimination. The Constitution and the Civil Rights Act that Congress enacted in 1964 clearly condemn what lawyers call subjective racial discrimination: the deliberate, racially motivated exclusion of members of minorities from public schools or universities or industries. Many prominent constitutional scholars argued that those fundamental laws also condemned structural discrimination: the intractable social and economic patterns of American society, created by generations of injustice, through which poorer education, lower expectations, and instinctive and unacknowledged prejudice insure that race continues to be a dominant, pervasive factor affecting the lifetime prospects of individual citizens. The prospects of a nonwhite child now are still, on average, dramatically bleaker than those of a white child, and though that is the result of centuries of injustice and bias, it would remain true, a stagnant feature of economic and social practice, even if all the illegal acts of deliberate, subjective discrimination were miraculously to disappear.
In the 1970s and early 1980s, the Supreme Court seemed to accept that the Civil Rights Act was intended to attack structural as well as subjective discrimination, and that the Constitution recognized the eradication of structural discrimination is a compelling public goal. Its decisions were best interpreted as reflecting two fundamental principles. The first declared illegal any hiring tests or procedures that perpetuate structural discrimination by offering nonwhites disproportionately few jobs, relative to the population from which job applicants are drawn, unless the employers can show that these tests or procedures are required for sound business reasons. The Court announced that principle in Griggs v. Duke Power Co., in 1971, in which the Nixon-appointed Chief Justice, Warren Burger, said for the majority that:
The objective of Congress in the enactment of Title VII [of the Civil Rights Act] is plain…. Practices, procedures, or tests neutral on their face, and even neutral in…intent cannot be maintained if they operate to “freeze” the status quo of prior discriminatory practices.
The Griggs case principle is now widely admired in other countries struggling with different forms of discrimination: it was adopted in the British Sex Discrimination Act of 1975 and Race Relations Act of 1976, for example, and by the Court of Justice of the European Communities as the proper test of whether employment, social security, or pay provisions are illegal because they promote or perpetuate gender discrimination.
The second principle implicit in the Court’s decisions was permissive rather than mandatory: it permitted both private and public institutions to give some preference, in hiring or admission decisions, to individual members of minority groups in order to help overcome the structural consequences of generations of injustice. The Court was, of course, concerned about the fairness of such programs to white applicants or workers who would be disadvantaged, and it tried to find appropriate restrictions. In the famous Bakke case, for example, it ruled that though a state university might take race into account as one factor among others, in order to promote student diversity it might not use rigid quotas for admitting minorities.10
The particular decisions that the Court made to carry out these two implicit principles, and the regulations that different departments of government issued to enforce them, were complex and often criticized—by some as too rigid or too open to bureaucratic or political abuse, and by others as not sufficiently protective of minorities. But the Reagan revolution in race law is aimed not at improving the application of the two principles, but at, in Fried’s phrase, “clarifying” the law so as to read these principles out of it altogether, and, so it seems, at denying that structural discrimination is inconsistent with the Constitution’s vision of an acceptable society. That aim is evident in two recent decisions in which Fried participated, both of which he now defends.
In 1989, in Wards Cove Packing Co. v. Alloto, the Griggs principle was seriously compromised.11 An Alaska cannery’s hiring practices resulted in a racial split between two kinds of work: difficult, unpleasant, and poorly paid cannery jobs were held predominantly by nonwhites, while the more attractive and better-paid jobs at some distance from the cannery were held predominantly by whites, who had different living accommodations and a different mess. (Justice Stevens, dissenting from the Court’s opinion, described the result as a “plantation” economy.) The Court of Appeals had held that the cannery therefore had the burden of showing that the employment practices that produced this brutal disparity were required by business necessity. The Supreme Court disagreed, by the now familiar 5–4 margin. Justice White’s majority opinion, in the course of arguing that the Court of Appeals had misapplied the Griggs principle, took the opportunity to change that principle dramatically by reversing its allocation of the burden of proof. Henceforth, he said, nonwhites complaining of racial disparity would first have to
demonstrate that the disparity they complain of is the result of one or more of the employment practices that they are attacking…specifically showing that each challenged practice has a significantly disparate impact on employment practices for whites and nonwhites.
The difference in the burden of proof between the two approaches is of crucial importance. The principle in the Griggs case was understood to be based on the assumption that great racial disparities in employment, which perpetuate structural discrimination, are bad in themselves, and that Congress intended to require employers to reduce those disparities unless they could show that business necessity prevented them from doing so. On that principle, once it is established that the cannery’s practices and hiring decisions, taken together, have created a plantation economy, the cannery must show that it could have done nothing commercially rational to avoid that result. Under what are apparently the Court’s new rules, however, the plaintiffs, who may be able to obtain only very sketchy information about how a particular company’s often subjective employment decisions are actually made, must sustain what would often be an impossible burden. They must identify particular employment practices as those that have produced particular degrees or aspects of racial imbalance. That would be a sensible allocation of proof, perhaps, if the law aimed only at preventing subjective discrimination: it might then be fair that plaintiffs should bear the burden of showing which particular practices they believe to be evidence of intentional bias. But it is not a sensible allocation of proof on the assumption, which the Court appears now to have rejected, that structural discrimination is an evil in itself.12
The Court appears to have dealt an equally serious blow to the second of two former principles: the principle that authorizes affirmative action as a mechanism of combating structural discrimination. Many American cities have adopted minority “set-aside” programs, which stipulate that a certain percentage of government contracts be reserved for construction firms owned in substantial part by nonwhites. In City of Richmond v. Croson, in 1989, the Court struck down Richmond, Virginia’s, set-aside plan which reserved 30 percent of such contracts, an unusually high figure. It decided in favor of a white contractor who had been denied a contract; it held that the set-aside program denied the contractor’s rights under the equal protection clause, because Richmond had not proved that the low percentage of local black entrepreneurs who had in the past been bidding for or receiving construction contracts was the direct result of any past racial discrimination in the local construction industry by the city or others, rather than just economic conditions and “societal” discrimination generally.13 Once again that is a perverse decision if the point of affirmative action programs is the practical goal of relieving structural discrimination. An economic hierarchy in which few blacks are entrepreneurs is guaranteed to perpetuate that form of injustice.
Civil rights groups and others concerned with urban racial problems were therefore appalled by the Court’s decision, and a group of distinguished law school deans and specialists in constitutional law wrote a joint article in the Yale Law Journal urging that cities interpret the Croson decision narrowly and not disband their programs immediately.14 Fried replied with an article of his own, suggesting that the decision was much more sweeping than the deans, and professors recognized, that it did revolutionize the constitutionality of affirmative action, and might well invalidate a great many set-aside programs.15
It is therefore crucial to Fried’s project in Order and Law to provide a principled defense of the “clarification” that the Civil Rights Act requires plaintiffs to prove which specific hiring practice caused a racial disparity in employment, and that a public body can undertake affirmative action constitutionally only when there had been some specific historical discrimination against the particular group being benefited. What principle of justice or of individual right can he find embedded in our constitutional structure that would justify those constraints on government’s ability to reduce structural discrimination? He offers only one argument that can be understood as a response to that question. He says that the principles the law seemed to many to be following in the past threatened a collectivist rather than an individualistic society, and were “a threat to liberty and to the basic right of every person to be considered as a distinct individual and not in terms of the groups to which government says he belongs.” But that statement of a constitutional or moral right is plainly much too broad. Almost all legislation treats people not as “distinct” individuals but as members of some group or other: voter qualification rules do not test individual qualifications of maturity, for example, but treat all those below a certain age in the same way. If the equal protection clause forbade any classification by groups, all such legislation would be unconstitutional, which is absurd.
Fried means, presumably, only that people have a right not to be treated as members of racial groups. He never explains, however, why it is an automatic offense to liberty to classify people racially though not by other categories equally not of their own choosing, such as age or income level or formal educational qualifications or other categories government and private institutions use instead of more individual assessments. Of course racial classifications are inherently dangerous, and must be carefully scrutinized, because they may reflect prejudice or naked favoritism by people in control. But it seems perverse to insist that racial classifications are wrong not just in those circumstances, but inherently, when the effect of that special severity toward racial classification is to perpetuate structural discrimination, that is, the situation in which individuals’ fates are so largely governed by their race that our society remains divided on collectivist racial lines.
So once again Fried’s crucial claim of principle seems undefended. Once again, moreover, his crucial claim seems inconsistent with his own more fully developed position. For Fried does not oppose all affirmative action programs using racial criteria. He endorses Justice O’Connor’s assumption, in her majority opinion in the Croson case, that a public body may use appropriate racial classifications if it can prove the existence of specific past discrimination against the particular group it now seeks to help. He thinks that Richmond, for example, would have been entitled to adopt a set-aside program if it could have shown that the low number of black firms bidding for construction contracts was the result of specific past municipal or private discriminatory practices in the construction industry, even though the particular black firms benefiting from the program would not be those who had suffered from the past discrimination, and the particular white contractors put at a disadvantage would not be those who had gained anything by it.
So Fried distinguishes between cases in which specific past local discriminatory acts can be identified, and affirmative action is permitted, and the more frequent cases in which the disadvantages minority individuals suffer are the result of general and pervasive structural discrimination throughout the nation, and affirmative action is therefore to be forbidden. That distinction might strike Fried and others as a useful political compromise in which those who hate affirmative action are appeased but minorities are given something. The compromise is unprincipled, however, because the distinction is arbitrary from the point of view of both legitimate political goals and individual moral or constitutional rights. Why should a community suffering from structural discrimination care whether it was caused by specific and identifiable private or public discriminatory acts or by historical prejudice and injustice more generally? Why should its eradication be a more compelling goal in the former than the latter case? Why are the supposed rights of white citizens, who might suffer from affirmative action, any less powerful in the former than the latter case?
Certainly the distinction cannot be justified if we accept the principle Fried cites: that individuals have a fundamental right not to be treated as members of a racial group. If individuals have that right, then all programs that give some people advantages denied to others because their race is different would violate that right; the violation is no more justified, with respect to any particular white job applicant or white construction contract bidder, when he is denied that right on the ground that other whites behaved badly to other members of the same minority in the past. So the idea accepted by Fried and many other conservatives—that affirmative action programs are justified when they are “remedial” of past discrimination in the proper way—is itself deeply offensive to the principle he cites as the supposed basis of the revolution in race law. He seems left with no principled justification for his position at all.
He does have a good deal to say against most affirmative action programs, and against the Griggs principle, which is based not on any fundamental principles of racial justice, but on more pragmatic and political grounds. Like other conservatives, he disapproves of the economic and other side effects of policies that attack structural discrimination. He talks, for example, about the resentments such programs cause to whites who feel themselves disadvantaged, about the damage they may do to the self-esteem of some blacks, and about the economic cost to businessmen of defending actions under the principle of the Griggs case, which he says prompts them to avoid the problem by aiming at racial balance for its own sake. He says that it was a cardinal aim of the Reagan revolution to prevent affirmative action programs from “distorting the system of opportunity and reward for merit on which the morale of a free-enterprise system depends.” These might be proper arguments to press before Congress and state and city legislatures, but no matter how passionately Fried and others may embrace them, they are not arguments of constitutional principle. They do not rest on principles that Fried can claim are embedded in the Constitution, principles that leap out at us when we draw lines from one individual right to another on the constitutional graph.
Fried confesses that the administration had to turn to the courts to suppress affirmative action because it was clear that it would not win what it wanted from Congress. “With the loss of the Senate in the 1986 midterm election,” he says, “legislative relief became unthinkable, so that the Supreme Court was the only available forum for our views.” That is a revealing statement: in matters concerning race, as well as in the Rust case mentioned earlier, which concerned free speech and abortion, the Reagan revolutionaries have treated the Court in the improper way they accuse liberals of having treated it in the past—as offering another opportunity to secure legislative policy goals, not involving constitutional principle, that they could not achieve more democratically.
Fried’s book is, as I have said, candid about the political pressures that the White House and Department of Justice officials exerted to influence his decisions about which cases to argue in the Supreme Court, and what arguments to make. He reports for example, about his decision as acting solicitor general to file a brief asking the Court to overrule Roe v. Wade, that “It was clear to me, that…I could not succeed in heading off an anti-Roe brief, even if I had been convinced that it was the right thing to do.” He compromised over another issue—whether plaintiffs who ultimately win cases accusing state governments of taking their property without proper compensation should receive damages for the losses they incurred while the controversy was pending—and filed a brief he did not think right. (He considered resigning, but decided that the issue was too “Mickey Mouse” for that.) He held firm on another matter, however: he refused to argue to the Supreme Court that it was illegal for unions to use their members’ dues for political purposes, even though he was told the White House and various right-wing groups were angry with his decision, and that he would do himself good by changing it.
Some readers have been surprised by Fried’s reports of such political interference with his judgment. Many lawyers believe that a solicitor general’s responsibility is to interpret and protect the Constitution, not his administration’s view of it. Another former solicitor general, Erwin Griswold, who was dean of the Harvard Law School for many years, wrote, in a review of Fried’s book,16 that he is worried by the degree to which that distinction seems to have been eroded in Fried’s view of the office.
I find it even more worrying, however, that Fried was unable to deliver the principled defense of the Reagan revolution he promised. As I have said, he agrees that such a defense is necessary. He acknowledges that the Supreme Court’s new direction cannot be justified by a conception of the Constitution that relies on “original intention” or by any appeal to the supposed primacy of majority rule in a democracy. But his attempt to justify the abortion and race decisions in the more principled way he proposes is just as complete a failure, in spite of his considerable skill and philosophical background.
It remains to be seen, therefore, whether the depressing Supreme Court decisions that are now beginning to change the character of our constitutional law can be defended in that way, whether they can be seen to reflect some general, coherent, even if very conservative, account of the Constitution as a moral system. The new decisions are strikingly consistent with the various political goals of major elements of the political constituency of Reagan and Bush. No one would count that as an adequate justification or defense, of course. But it is far from clear that anything jurisprudentially more impressive can be said on their behalf.
—June 20, 1991
July 18, 1991
McCleskey v. Zant, 59 USLW 3782. ↩
Arizona v. Fulminante, 59 USLW 4235. ↩
McCleskey v. Kemp, 481 US 279. Although blacks who murder whites are much more likely to be sentenced to death in Georgia than blacks who murder other blacks, or than whites who murder anyone, the court declared this irrelevant in deciding whether race played any role in a Georgia court’s decision to execute a black defendant convicted of murdering a white victim. ↩
Rust v. Sullivan, 59 USLW 4451. ↩
See my article, “Bork’s Jurisprudence,” in the 1990 Chicago Law Review, and also Lawrence Sager, “Back to Bork,” in The New York Review (October 25, 1990). ↩
Fried emphasizes the role played in the Griswold decision by Justice Harlan’s 1961 dissent in Poe v. Ullman, which supported a right to privacy. Fried was Harlan’s law clerk in that year, and presumably worked on that dissent. ↩
He repeats a bad argument that he made to the Supreme Court: that the Griswold case, at least, only concerned whether the police should have the power to break into bedrooms to search for contraceptives. Only one of the several majority opinions in Griswold mentioned that reason, and cases after Griswold, which Fried does not suggest were wrong, decided, for example, that the states could not forbid the sale of contraceptives in drug stores, a prohibition that could certainly have been enforced without midnight raids on marital bedrooms. In any case, since Fried aims to display the moral principles that underlie the Reagan revolution, he must distinguish contraception from abortion in some deeper way: if the Griswold decision was a correct and important protection of liberty, but Roe v. Wade an unlawful imposition of naked power, then the difference between the two must lie in something more important than the dubious claim that prohibitions on contraception might tempt the police to search bedrooms. ↩
Fried nowhere explains why, if that is so, states are not entitled to forbid the use of the safest and most popular contraceptive pills now in use, which are aborto-facients, that is, pills that act by aborting just-conceived fetuses. ↩
I do not mean that states would be required to follow that rule. See my discussion in “The Great Abortion Case,” The New York Review (June 29, 1989). ↩
“The Bakke Decision: Did It Decide Anything?” The New York Review, August 17, 1978; Letters, September 28, 1978. ↩
448 US 448. ↩
Nor is it defensible for the Court to have reached that result by overturning a longstanding interpretation of a congressional statute, which Congress itself could have reversed at any time in the last twenty years. Several congressmen, including Senator Danforth of Missouri and eight other Republican senators, have already introduced measures to restore the Griggs rule. But Bush can veto any such measure, which means that the Court and enough congressmen to sustain a veto are now in a position, on this exits tremely important matter, to repeal an established congressional decision that the Court acknowledges is within the power of Congress to have taken. ↩
448 US 469. ↩
The scholars’ statement appears in the Yale Law Journal, Vol. 98, p. 1711, and Fried’s reply in the Yale Law Journal, Vol. 99, p. 155. The scholars replied to Fried’s reply in the Yale Law Journal, Vol. 99, p. 163. ↩
Fried’s extravagant claims about the scope of these decisions may well be overstated. They seem inconsistent with the Court’s later decision—Justice Brennan’s last substantive opinion—in a case in which Fried submitted a brief, but which was decided after he returned to Harvard, and presumably too late to be mentioned in this book. In Metro Broadcasting Inc. v. FCC, 110 SC 2997, the Court held that Congress could constitutionally adopt programs designed to increase minority ownership of broadcast stations without demonstrating that the lack of minority programming was the result of specific past discrimination rather than just social factors. The Court’s opinion emphasized the peculiar role of the national Congress in implementing the Fourteenth Amendment but, as Fried has recognized in a later article, the decision could not be right if, as he says Croson established, the Constitution forbids any official affirmative action except subject to the conditions he described. ↩
Constitution (Spring–Summer 1991), p. 73. ↩