Warren and Rehnquist Courts

[Volokh, Eugene]

        I hope I acknowledged in my earlier posts that it's possible that
the opposition to race preferences is only a large minority view, not a
majority view.  I agree that neither polls nor ballot measures dispositively
tell us exactly what fraction of the population supports race preferences
(though note that many polls that show majority public opposition to
race-based action [and not "affirmative action" generally, which may be
race-neutral] were conducted by neutral bodies).  Nor do I even think that
the CCRI and the WSCRI won by "stunning" margins.  And I certainly didn't
aim to argue that the poll results or election results show that race
preferences are wrong or that Adarand is right -- naturally, polls and
elections cannot do this.

        I cite this evidence for one proposition only:  That the Court's
decisions -- which actually don't go as far as Prop. 209 or the Washington
State Civil Rights Initiative -- are not fringe, and in fact represent a
view that is part of mainstream thinking (whether because it's a majority or
just a large minority).  I believe my evidence amply demonstrates this
proposition.  Even if one thinks that only, say, 40% of the public in fact
generally oppose race preferences, surely one can hardly call this a
"fringe" position or deny that it is part of the "mainstream" (especially
since even with the 40% number, the remaining 60% would hardly all be in
favor of race preferences).

        Note also that whatever the unreliabilities of polls and election
results, I haven't noticed anyone on this thread introduce any factual
evidence that shows that the Rehnquist Court's decisions in this area -- or
for that matter in other areas -- are indeed fringe positions as to the
public at large (as opposed to just positions that have not gotten the
endorsement of either party).  If there is such evidence, I would love to
see it -- but I don't think we've seen it yet.

        It's of course perfectly reasonable for people to criticize the
Court's decisions on the merits.  But it seems to me erroneous to condemn
them on the grounds that they are "fringe" or non-"mainstream" decisions.


Sylvia Lazos writes:

> Professor Volokh cites the stunning  margins of victory in the affirmative
> action referendum and poll data for the proposition that the Rehnquist
> Court is somehow pretty "mainstream" on race preference decisions.
>
> Poll data.  The research has shown, quite convincingly, that how you frame
> the question is all important in what result you get.  If  you ask
> something like, "are you against preferences" the answer is agreement,
> about 2 to 1.  If you ask, "do you support affirmative action"  the
> response is much closer.   Researchers have also shown that if you somehow
> make the interviewee aware of the consequences of their vote (thereby
> taking it out of the abstract/symbolic realm) you will get different
> results.  So for example, if you ask, do you support English only, the
> response is affirmative, 2 to 1.  But if you ask, do you support English
> only laws, even though it may mean that some persons who do not speak
> English will be unable to vote and obtain government services, then the
> response is a virtual tie.
>
> There is reason to disagree over affirmative action.  But citing poll data
> is not persuasive.  Polls are manipulated, and because of that inferences
> drawn from polls are of limited value.
>
> Voting outcomes.  Is Professor Volokh really making the argument that the
> voting public in initiatives dealing with racial "hot button" issues --
> after being hammered with commercials that frame these issues at a real
> high plane of intellectual debate (eg, the Pete Wilson ads picturing
> Mexicans running for the border like rats)  -- make decisions that are
> somehow  rational and that these outcomes reflect  mainstream thinking?
>
>
> Political scientists spend a great deal of time telling us how civic
> dialogue in the context of elections can get distorted.  Lydia Chavez in
> The Color Bind: California's Battle to End Affirmative Action  (1998)
> makes a case that this occurred in California on the affirmative action
> referendum.  I conclude in my Ohio State Law Journal article, Judicial
> Review of Initiatives and Referendums in which Majorities Vote on
> Minorities' Citizenship  (yet another  example of shameless self promotion
> by a participant of this list)  that the likelihood of intergroup
> animosity  factoring into the outcome justifies a role for close judicial
> review.   While I do not agree with the blanket statement that on hot
> button race issues, like English only, affirmative action and Bilingual
> Ed,  majorities will vote according to their prejudices, I conclude, after
> studying the social science and political science studies, that
> majoritiess' vote on these issues is a mixed bag.  It includes
> ethnocentric thinking, racial attitudes, and just plain ol' disagreement.
> Accordingly, results of initiatives are also of limited value in drawing
> inferences about what the civic community really thinks.
>
> [I know that the conclusion of the article is a "besides" to the current
> discussion, but not to leave you in suspense, I argue that courts should
> overturn initiatives in these kinds of cases when the results exclude a
> disfavored group from meaningful civic participation, which is how I
> interpret Evans v. Romer.]
>
> For me, the Supreme Court's performance in the race preferences cases
> represent the Court's: 1) general unwillingness to face the hard issues in
> this area (the sole exception being  yeah -- you know it -- Brown), or 2)
> fear of entering into racial controversies, a subject matter area in which
> lawyers and judges are not schooled.  It is not necessarily about ideology
> (although for some Justices it is).  The abundance of badly reasoned
> opinions in this area speak for themselves.
>
> Of course we can disagree, and I recognize that my thesis is
> controversial.  But can anyone defend Adarand v. Pena on the basis that it
> is well reasoned?
>
> And, for those who believe in following precedent because it provides
> coherence and predictability, if it can be shown that the Court is more
> apt to punt on difficult race relations cases rather than face the music,
> then shouldn't preference for following precedent be put aside in this
> area?
>
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