Extreme passivity in the defense of the Constitution is no virtue

This Charles Krauthammer piece about the Supreme Court’s end-of-term decisions ran while I was on vacation. Krauthammer correctly takes the Court to task for its “arbitrariness and imperiousness,” especially that of Sandra Day O’Connor. However, he continues to defend the decision upholding race-based preferences in college admissions as a victory for the salutary notion that these sorts of issues should be decided by the political processes of the various states, rather than by the courts.
Krauthammer had been criticized for this taking this position. The critics (such as me) argued that permitting racial discrimination in the name of states’ rights harkens back to the bad old days of segregation. Krauthammer responds that waving the “bloody shirt” of segregation “is a clever tactic and a staple of judicial activism, but it fails because segregation was unique.” Why? Because in the segregated south blacks were disenfranchised so that there was no normal democratic practice and “they could not undo the injustice by legislative means because they had been deprived of those means.” In Krauthammer’s view, it is for this reason (and only this reason) that the Court had to intervene.
Here, I think it is Krauthammer who is clever but misguided. The Court had to intervene in the school desegregation cases because the Fourteenth Amendment to our Constitution prohibits the government from segregating its schools. The validity of the desegregation decisions in no way depends on whether a properly functioning democracy would have produced segregated schools. Indeed, one can easily imagine localities or even states that (given their racial demographics) might democratically decide to segregate their schools. Would Krauthammer argue that courts should not intervene in such instances? For that matter, would he argue that a democratically valid decision to censor political dissent should not be reviewed?
Krauthammer is correct that our “pluralistic Madisonian democracy” is mostly about resolving the tough questions we face as a society through “the clash of factions in the legislature,” not the clash of lawyers in courts. But it is not exclusively about that. Our society is also about upholding certain core principles — the ones set forth plainly in our Constitution.


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