From Bakke to Grutter and Gratz : The Supreme Court as a Policymaking Institution (original) (raw)

2004, Review of Policy Research

Finding the best means for ensuring equal opportunities for women and minorities has long been controversial and initial efforts to do so were addressed by executive orders, and later the historic Civil Rights Act of 1964. However, this paper argues, since its initial Bakke decision in 1978, it is the Supreme Court that has set policy in this area. In the twenty-five years between that decision and the recent Gratz and Grutter decisions, the court has shifted in its stance, in many cases declaring unconstitutional what it once sanctioned. That shift has not resulted from changes in laws or new amendments to the Constitution, nor can it be seen as reflecting public opinion, as that is not clear-cut. Rather, affirmative action policy has reflected the ideological stances of the justices sitting at the time a decision was rendered. The paper concludes with an assessment as to what this means for a democracy. The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court. .. the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Abraham Lincoln, First Inaugural Address In June of 2003, the Supreme Court handed down two landmark decisions defining the acceptable parameters of the use of affirmative action in university admissions decisions (Grutter v. Bollinger and Gratz v. Bollinger). The importance of these cases was reflected in many ways, from the dozens of organizations and individuals who hoped to influence the outcome through amicus briefs to the extensive news coverage the cases received. Commentators were quick to express their support or opposition to the verdict, but what was left unquestioned was whether it should be the Supreme Court, the unelected branch of government, who sets policy in this area. The purpose of this paper is to examine the court's policymaking role through the lens of affirmative action. The extent to which the Supreme Court should and does engage in policymaking has long been controversial. The justices do not do so directly, of course, but rather through the power of judicial review; that is, in declaring policies to be in violation of law or the Constitution. It is clear from Federalist 78 that Alexander Hamilton (1961) saw this power as necessary to protect "the minority party in the community" from "serious oppression" that may occur if the majority has a mind to enact legislation counter to the will of the people as represented in the Constitution. From another point of view, this creates what Alexander Bickel (1962) called the "countermajoritarian difficulty." He wrote: "when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it" (Bickel, 1962, pp. 16-17).