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Eric Segall on Fisher v. University of Texas
Michael Ramsey

In the LA Times, Eric Segall has this op-ed on conservative Justices and Fisher v. University of Texas (to be argued tomorrow): A conservative quandary in affirmative action case Fisher vs. Texas.  From the core of the argument:

Conservatives normally insist that unelected judges should not overturn laws (like those relating to abortion or gay rights) unless the Constitution's text or its history is clear. But the Equal Protection Clause does not even mention race. How can self-identifying textualists like Justices Antonin Scalia and Clarence Thomas therefore conclude that the 14th Amendment prohibits the use of any and all racial preferences in university admissions?

Because the text cannot resolve the issue, conservative justices have looked to Justice John Marshall Harlan's dissenting opinion in the infamous case Plessy vs. Ferguson, which upheld separate seating for whites and blacks on public transportation. Harlan argued that “Our Constitution is color-blind, and neither knows nor tolerates classes among its citizens. In respect of civil rights, all citizens are equal before the law.”

Harlan, however, was objecting to formal governmental rules intended to confer second-class citizenship on a distinct group of minority citizens. No reasonable person can believe that the University of Texas, by trying to increase the diversity of its classrooms, is trying to bestow second-class citizenship on anyone or any group. Unlike the state of Louisiana in Plessy, Texas is trying to bring the races together, not keep them apart, and all racial groups are welcome. Currently, the University of Texas is roughly 50% white and 50% people of color.

Conservative justices also usually privilege the original meaning of the constitutional text, giving weight to how lawmakers or the people at the time understood it. At the time the 14th Amendment was adopted, and shortly thereafter, the federal government had in place race-conscious programs to help newly freed slaves and other people of African descent. Any reliance on history in Fisher therefore undercuts the theory that the 14th Amendment was meant to enforce complete color-blindness, and supports the argument that programs designed to alleviate past racial discrimination are constitutional.

Mike Rappaport took on this argument (pretty effectively, I thought) a couple of years ago in this article: Originalism and the Colorblind Constitution.

SOMEWHAT RELATED:  Professor Segall and Judge Posner have this response to criticisms (from John McGinnis and Ed Whelan) of their New York Times column on Justice Scalia.  Ed Whelan comments further here.  Based on their response, it seems they are mostly contesting Justice Scalia's narrow view of the establishment clause.  They say:

On the basis of [Justice Scalia's] Establishment Clause opinions and his jurisprudence generally, we doubt that he would vote to invalidate the posting of a sign on the White House lawn stating: “We are a CHRISTIAN country and if you don’t like it, GET OVER IT.”

I'm not sure that's right.  As they quote Scalia later, “the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over non-religion.”  But the sign in the Posner/Segall hypothetical favors one religion over another, not religion over non-religion.  Scalia might consider that to be a difference of constitutional magnitude.  In any event, Posner and Segall don't make originalist arguments regarding the meaning of the clause.  Perhaps the clause's original meaning would allow the hypothetical sign (or, more likely, would allow government support for religion over non-religion, as Scalia favors).  In that case, their quarrel is with the framers, not with Scalia.