What does it all mean? The Supreme Court's decision in Regents of the University of California v. Bakke invites assessment at many levels. Was it really a "Solomonic compromise" worthy of our constitutional tradition, as some prominent scholars have suggested? Or does the decision represent, as I believe it does, a disturbing failure by the Court to discharge its responsibility to give coherent, practical meaning to our most important constitutional ideals? Does the uncharacteristically opaque and simplistic opinion of Justice Stevens mask deep divisions and ambivalences among the four justices who subscribed to it? Can there be any validity to a conclusion like Justice Powell's that a state may make race-conscious decisions regarding university admissions in order to enrich its academic dialogue, but not to counteract the distributive injustices of three centuries? What does it say about the judicial process ( or about academia) that the justices seem to have profited so little from the unusually rich scholarly literature on the subject of racial preferences? Who gets the better of the debate between Justice Stevens and Justices Brennan, White, Marshall, and Blackmun regarding whether interpretation of Title VI should be governed primarily by the "plain meaning" of its language or by the "unequivocally expressed legislative purpose?"
These and other questions beckon, but I want here to undertake a more mundane inquiry: to explore how the Court's decision in Bakke should be interpreted by judges and administrators who are obligated to adhere to it as a precedent. I am not concerned with what the Justices "really had in mind," only with the legal effect of what they said and did. At that level, what does it all mean?
Civil Rights and Discrimination | Law | Law and Race
Vincent A. Blasi,
Bakke as Precedent: Does Mr. Justice Powell Have a Theory,
Calif. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3831