"Constitutional Justice" or "ConstitutionalPeace"? The Supreme Court andAffirmative Action

Graber's categories can be used to illuminate contemporary constitutional debates over racial preferences: The choice between "constitutional justice" and "constitutional peace" structures the debate over affirmative action no less than the debate over slavery. Now as then, two fundamentally different conceptions of justice have come into conflict. One conception of justice would prohibit the government from using race-sensitive measures except in those narrow circumstances in which individual offenders and individual victims of racial wrongs could be identified; the other conception would require a reparative program in which the government, as the political representative of American society, would be liable for the persisting effects of historic harms inflicted on collective groups-and especially on African Americans. Sensing the potential for widespread racial polarization that could ensue from the adoption of one or the other of these vying conceptions, the Supreme Court has sought instead to devise a formula that would produce a generally acceptable "constitutional peace." Particularly through the work of two influential conservative "centrists"Justices Powell and O'Connor-the Supreme Court has come to limit the "remedial," backward-looking use of racial categories to narrow circumstances, but to permit a nonremedial, forward-looking use of race that involves no attribution of liability for past or persisting racial injustices. In effect, the Court has sought to change the national conversation over racial justice into a conversation over the methods of forming political, legal and business elites. While the Court's "affirmative action' formula has thus far appeared to bring a substantial measure of "constitutionalpeace" over racial questions, the issue of "constitutional justice" has not gone away.Table of ContentsI. Introduction 13II. Constitutional Evil, Peace, and Justice 18A. Dred Scott and Constitutional Evil 18B. Constitutional Conflict and Compromise Before the Civil War 22III. "Constitutional Justice" and Affirmative Action 25A. Corrective and Distributive Justice 25B. Corrective Justice and the Question of Collective Responsibility 26C. Affirmative Action As a Conservative Strategy 37IV. Constitutional Peace and Affirmative Action: Three cases 41A. Bakke 41B. Adarand 58C. Grutter 63V. Constitutional Peace or Constitutional Justice? 70I. IntroductionAnyone trying to track the path of the Supreme Court's affirmative action decisions on the subject of race might soon feel lost in a maze. Even after allowing for the uncertainties necessarily involved in developing a new body of law; changes in the Court's membership; the evolution of the views of individual justices; and the pragmatic need for the Court to test the reactions of other governmental actors and the general public to its rulings on the extremely sensitive issue of racial preferences, the course of the Court's decisionmaking-from its fractured 1978 ruling in Regents of the University of California v. Bakke1 to its closely divided outcomes in Grutier v. Bollinger2 and in last term's Parents Involved in Community Schools v. Seattle School District No. …