Argument alone cannot
dislodge the presumption in favor of officeholders who speak authoritatively
concerning the meaning of our laws and Constitution. For that reason the
following critique of the Supreme Court’s opinion and judgment in the case, Johnson
v. Transportation Agency, Santa Clara County, addresses rather more our general
understanding than any action agenda. Place matters in their proper context and
the necessity of this approach will be readily apparent.
The critique does not shrink
from demonstrations that the Justices do not deserve our attention on the basis
of any intrinsic merit in their reasonings and judgment. They reason poorly and
decide unwisely (as, for example, in denying the palpable demonstrations that
petitioner Johnson had in fact been constructively hired for the position in
question but subsequently denied it solely on the basis of his gender). It is
rather their office that commands our attention. For whether they reason well
or ill, we gauge the range of our conduct by their judgments.
We can demonstrate how
awkwardly circumstanced we are because of this relationship. We know today
that not only Justices but many high officeholders are not only ignorant of but
ill-disposed toward our Constitution and the attendant conditions of its
development. We pledge allegiance to the republic created by that Constitution,
while the general perception of it is forged by voices altogether antagonistic
to it and which also misrepresent it. Can a pledge of allegiance make any
sense in that context, any more than a spirit of law abidingness when that law
is being shaped by lawless judicial interpretation? I believe the answer is yes
and shall try to explain why.
Put affirmative action aside
for the moment and consider only the diverse statements about the imperfections
of the American founding coming from high officials in this bicentennial
season. According to their voices, American founding history is a sham and a
delusion. Yet, the evidences they offer are all false! In a court of law we
could not admit them as experts because we may so easily demonstrate that they
do not tell the truth when they say the founders favored slavery, did not
include blacks and women in the Declaration, and, the ultimate charge, regarded
a black person as only three-fifths of a human being.
All of these charges are
refuted, I say, not by me but by the very surface of the founding documents and
their circumstances. The compromise over slavery in the Constitution, for
example, actually represented a movement away from the absolute protection for
slavery that a threat from South Carolina had introduced in the convention. The
Declaration does not only speak of men when it declares “all men are created
equal.” It also affirms that governments “are instituted among men.” It would
be hard to insist that women were thought to be ungoverned! But beyond that,
Jefferson protested that nefarious practice of keeping “open a market where MEN
should be bought and sold.” That these MEN were black and male and female no
sophist would deny and, one may say, was a fact of which Jefferson was
intimately aware. Thus, the usage of the Declaration excluded none and was self-consciously
universal. So, too, with the three-fifths clause both in its original form
(Confederation Congress, 1783) and in the Constitution. Not only did the
framers not depreciate the value of a black man per se, they specifically
counted free blacks and whites, including indentured servants, as whole
persons. The three-fifths calculation applied only to the credit for
representation and taxation to be granted to slave-owners in States permitting
slaves. The slaves were black, to be sure, but the fundamental distinction the
calculation was based on was between free and slave. No negative aspersions
were involved in this particular provision.
Is it not then wonderful,
despite this record, that authoritative opinion inculcates the opposite view at
every point? Are we to suspect high officeholders of lying, of intentionally
seeking to subvert the foundations of this republican order? I think not. I
think we rather behold the effects of meager study and blind submission to a
reigning orthodoxy. The general opinion that is represented here certainly had
a particular origin, but that is not important here. What does count is the
fact that, on the basis of this general opinion in the name of which Justices
and others act, we must expect decisions and expressions unfriendly to the
Constitution.
To return to affirmative
action, this helps to explain not only how such decisions are made but what
their force is in our society. The situation of affirmative action today is not
unlike that of slavery 200 years ago. The first constitutional debate in
Congress was over slavery; it ended with the House asserting that Congress had
some power over slavery but declining to exercise it. Although the greater and
better part of the citizens of the United States found slavery incompatible
with the principles of and their hopes for the republic, they could undertake
no remedial steps that did not also prevail over the opinion of the
slaveholders.
Thus a powerful minority,
not otherwise dominating the Nation, held the key to this problem—a key, as we
know, of which no use was made. Similarly with affirmative action, even its
supporters acknowledge an ultimate loyalty to the notion of a colorblind
Constitution, just as slaveholders had conceded that slavery was incompatible
with the Declaration. But, just as slaveholders could not find the practical
expedient to free themselves immediately from their contradiction, so, too,
supporters of affirmative action insist that it is for the moment practically
impossible to forgo race- and class-conscious law.
In the United States of 200
years ago, there were practical expedients untried, because they could not win
the prior consent of the slaveholders. Today those who oppose affirmative
action insist that there are superior modes to realize the promises of American
institutions and principles, but our expedients cannot operate in the presence
of affirmative action. Thus, they are excluded while affirmative action is the
law. Many factors and interests sustain affirmative action. Doubtless one of
the most significant, however, is the preponderance of support among American
blacks. It may fairly be said that, whatever else happens, no important change
of American law is possible in this regard that does not at the same time
prevail over the opinions of American blacks. Hence, a powerful minority, not
otherwise dominating national life, holds the key to the solution of this
problem.
When we speak of the
opinions of Justices, therefore, and whether they are learned or mere
repetitions of stale, uncritical formulas, we do not pretend thereby to have
eliminated the exigent character of Court judgments. How far we can follow a
Court—and therefore a public opinion—hostile to fundamental conceptions of
liberty will remain a most intriguing question. In the assessment that follows,
however, we assume not only a commitment to carry out the law to the farthest
extent but also the obligation to seek to alter opinion in such a manner as to
obviate the recourse to questions more fundamental.
I divide this statement into
two parts in order to signal that the analytical portion makes no pretense of
showing any regard for the artificiality of legal reasoning. Legal reasoning
today is significant only insofar as it permits us to say what is the latest
expression of the law, not what is right or wrong. On that impoverished view,
one might liken it to the directions that guide a scavenger hunt. Accordingly,
the second portion of this statement is merely an approximation (a first order
approximation) of the legal obligations imposed by Johnson.
I concur in the statement of
Chairman Pendleton. In addition, I wish to add some direct reflections on the
Court’s judgments in two respects, first with regard to the character of the
opinion, and then in respect to the obligations of the law.
The majority opinion written
by Justice Brennan stretches our powers of imagination beyond the reasonable.
Something called “The Plan” springs to life and assumes reflective and
commanding postures. The Plan “notes.” The Plan “observes.” The Plan “implements.”
And so on. Indeed, everything that occurred, according to the majority,
happened “pursuant to the Plan” (the affirmative action plan of Santa Clara
County, California).
Thus arises a paradox, on
the stated facts of the case. Petitioner Paul Johnson competed against Diane
Joyce and seven other applicants for the position of road dispatcher. Johnson
and Joyce were both presumably well known to the appointing authority, since
both were already employed within the Santa Clara County Transportation Agency.
Johnson received preferment based on testing/interview performance, prevailing
not alone over Joyce but over five other applicants deemed qualified. All of
this took place under the existing authority of “The Plan.” When, then, the
county affirmative action coordinator intervened (at the request of Joyce) to
overturn the constructive hiring of Johnson, the intervention gave rise to the
question of whether “The Plan” was being followed. Without any showing whatever
that the transportation agency did not follow “The Plan” in selecting Johnson,
the agency was directed to appoint Joyce, in accord with “The Plan.”
In the absence of a positive
contrary showing, we must assume that all who live by the “The Plan” also live
in conformity with “The Plan.” Thus, according to the majority’s reading of the
facts of this case, the Santa Clara County affirmative action plan could
produce either of two exactly opposite results. It could produce appointments
with respect for gender distinctions but not on that basis, or it could
squarely discriminate on the basis of gender. Either would be acceptable, on
the majority’s reading.
The reason that either of
the opposites—nondiscrimination against males or discrimination against males—seems
acceptable is that the Court conceded the title to the county to act
arbitrarily and to judge summarily where these, and these only, were the
allowable options. Commissioners Berry, Guess, and Ramirez seek to minimize the
impact of this conclusion through the declaration that the differences between
Johnson and Joyce were minimal. They rely on the Court’s belief that “any
difference in qualifications between Johnson and Joyce were minimal, to say the
least.” But here lies a problem: the two-point difference between Johnson and
Joyce must appear insignificant on a colloquial or non-expert reading. To say
the least, neither we nor the Court have any idea what to make of such raw
scores. On the other hand, we do have a conversion instrument that would make
those raw scores commensurable with other human performance—and thus say much
to us about qualifications. We know that, of seven qualified applicants, a
two-point difference placed Joyce below, and Johnson above, the 50th
percentile. That is certainly no minimal difference. It may even signal the
distinction between “barely qualified” and “qualified.” This, in turn,
amplifies our understanding of the Court’s grant of arbitrary authority to the
County of Santa Clara.
With this result from a
reading of the facts of the case and the Court’s reasoning, we are forced to
ask why. How does the Court justify such a counterintuitive result? The
answer: not easily! nor well! According to the Court, the question being judged
was not whether gender had been taken into account but whether it had “impermissibly”
been taken into account in violation of Title VII of the Civil Rights Act, as
amended. The relevant amendments prohibit discrimination or adverse
categorization on the basis of gender and several other factors. In addressing
the question, the majority announced an exclusive concern with the “scope” of
Title VII, severing the law from any questions of constitutionality since,
purportedly, no constitutional questions had been raised. (This, abstracting
from the fact that the relevant amendments to Title VII had explicitly injected
the constitutional question relative to public employers. Needless to add, it
never occurred to the majority to recur to the axiom of the Declaration of
Independence that vouchsafed the rights of all.)
The significance of the
decision not to confront the constitutional question lies in the effect of that
decision on the majority’s reading of the facts. The Court’s prior affirmative
action history would have been relevant in trying the constitutional question
but not, according to the logic, to trying the scope of the statute. The
opinion is not informed, therefore, by the evidence that the present “Plan”
represents a reaction in Santa Clara County, not to a tradition of segregation
but to the county’s own frustration with the results of equal employment
opportunity.
The county mandated in its “Plan”
work force adjustments in harmony with demographic representations of
identified population subgroups. Thus, if 10 percent of the population were
black, so too should the work force be. If 50 percent were women, so too should
the work force be. If 3 percent were Asian, so too should the work force be.
The mandate applied not merely across the board, but through specified job
categories. In the transportation agency’s “Plan,” the goals of the county
mandate were to be attained by means of annual statistical improvements in the “representation”
of the designated subgroups. The concentration was to be on the “underrepresented”
as opposed to the “overrepresented” subgroups.
The transportation agency
made the transition from vague, long term social objectives to concrete, short
term goals by means of a specific action plan—namely, to locate qualified
applicants in the relevant geographical area and then to distribute them actuarially
relative to anticipated vacancies. The number identified at each actuarial increment
would become the short term goal. A less complicated way to state this bureaucratese
is to say that they guessed at probable job openings (firings, retirings, etc.)
and made a judgment about the availability of members of the subgroups to fill
them. Whatever number of availables they came up with, up to the number of
vacancies, became the short term goal. It is, therefore, almost a conscious
lie, when the Court declares that the “Agency’s Plan thus set aside no specific
number of positions for minorities or women.” They set aside a specific
percentage of each group on a long term basis and specific numbers year by
year, up to the number prescribed by the long term goal operating as an
arithmetic factor.
The Court’s sleight of hand
may be captured as follows. It is possible to describe the dynamics of a
Supreme Court judgment without ever mentioning the number nine or any number.
Doing so, however, will not alter the fact that a determinant number of opinions
alone will and must decide in any given case. The pretense that Santa Clara
County’s goal is not a quota merely because the county forswears an immediate
declaration as to a number is either intellectual duplicity or stupidity.
Although reasoning on that order may determine the law, we can take comfort
that the disease need not be catching.
A last word on the “overrepresented,”
such as female clericals: although the quota system mentioned here would be
harmless in a perfectly elastic, evenly distributed labor market, a different
story unfolds to the extent that humans form their ambitions and career
objectives differentially (however subject to evolution). In the latter case, a
necessary deduction would be substantial, legally imposed unemployment or
misemployment in certain categories. It does not apply immediately only
because the Court and the county forswear any intention to do anything about
overrepresentation. On the other hand, the warning lights have already lit for
the future of Asians in American higher education!
The two primary notions, the
calculation of work force representativeness and non-applicability of equal
employment considerations, go to the heart of the Court’s reasoning. It does,
however, distinguish itself by other feats of legerdemain. According to past
opinions, for example, such a “Plan” would be flawed if it were permanent as opposed
to temporary. The lower court concluded from the absence of a termination date
that the “Plan” was permanent. The High Court majority ruled, however, that the
“Plan” only spoke explicitly of “attaining,” not “maintaining a work force
mirroring the labor force in the County.” Thus, though acknowledging that the “Plan”
called for an open-ended attainment of work force quotas, the majority
pretended that the absence of one word, maintenance, meant that the county
would have ended the “Plan” as soon as it reached its goal (which, by the way,
was not supposed to be a real goal!). This is rather like arguing that a person
who buys a car without a service contract really doesn’t mean to keep the car,
for we all know that cars require maintenance to be kept. Yet, to the extent
that it is common knowledge that maintenance is the means to provide
permanence, why should we have to make it explicit?
The Court’s reasoning on the
temporal character of the “Plan” resembles its reasoning on the facts of the
case touching Johnson’s rights—namely, the Court denied that Johnson was denied
anything to which he had a right. The Court must be wrong here (as any good
common law jury would surely find), and it tacitly acknowledges this by focusing
on Johnson and not the other candidates over whom Joyce had been selected. Why
does Johnson stand out? Because the selection process had narrowed to a choice
of Johnson! On the facts presented even in the majority’s opinion, it is
plausible to assume that the decision to appoint Johnson had been made through
normal channels, and that in an atmosphere which had indeed raised at least an
expectation of Johnson’s constructive title to the job. What happened next,
then, was not a simple decision to appoint Joyce, but a decision to override
the process (which already included affirmative action criteria) and on the
basis of gender alone to appoint Joyce over Johnson. [N.B.: This is the source
of the entire fallacy of Justice O’Connor’s concurrence. She failed to note
that gender was considered twice, not once, and therefore considered
inappropriately the second time. Insofar as she wished only to defend some
consideration of gender, it had been provided for already. Had she noticed
that, she would have dissented.] It was a decision to deny Johnson what he had
earned (a form of title with which the Court is no longer conversant but one
that will ever be morally compelling). The decision of the appointing
official—under the direction of the county affirmative action officer—was
effectively that the county would not be harmed by appointing Joyce (which
appears correct on narrow grounds), without regard for what befell Johnson.
This is what the Court has shown us, though it has not the courage or the art
to say it.
Johnson is not alone. Every
use of race or gender operates as an exclusion. Where the exclusion of certain designated
minorities, by race or ethnicity, or the exclusion of females, may result, the
Court holds it is insupportable and by no stronger argument today than what can
be wrung from the expression, “traditionally segregated.” The exclusion of the
combined class of white males—a minority by race plus gender—is the mandate of
the law and the necessary inference of the Court’s reasoning.
This enormous transition in
American principles (this abandonment of American principles) stands on an
argument in behalf of “effecting a gradual improvement in the representation of
minorities and women” in the key centers of social and political life. Thus,
the question ceases to be a matter of individual rights and becomes instead a
matter of social symbolism. Nowhere in this or any other opinion, however, does
the Court undertake to state cogently the sources and content of this
symbolism, conveyed by the sole word, “representation.” The gravamen of this
consideration will become clear if we contrast the word “representation” with
the word “presence.” If the Court’s goal were gradually to effect an
improvement in the presence of minorities and women in key centers of social
and political life, there would be implied named individuals whose rights and
fates were at stake. Their presence would answer to their unmerited absence.
Presence, replacing absence, would terminate the cycle. But what is
representation? Is it political, as where many choose few to speak on their
behalf? If so, how can the choice of the spokesman be placed in the hands of
the persons to whom the many are represented rather than in the hands of the
persons represented? Is it artistic, as in the theatre we regard a play as a
representation? If so, who is the artist, and on what just grounds do we limit
his expression? Is it merely statistical, as in a representative sample? If so,
must we not impose scientifically precise conditions of randomness to achieve
the stated end? We behold in these reflections the massive evidence of the
Court’s confusion. The fact is, the Court’s majority simply has no very firm
conception of what it is talking about. It is out of its league.
There is a perverseness
involved in considering one laborer in any given industry the “representative”
of others who have their own rights to vindicate irrespective of what happens
to people who “look like them.” They may very well prefer to hold that job
themselves rather than be “represented” through the accident of race or
gender. Their wishes, other factors not intervening, ought to be the law’s
command. In what way, then, does one laborer thus represent others? He doesn’t
share out his pay among them. His tax obligations do not discharge them from
like obligations. Nor can they even be sued for liability when he screws up!
This metaphorical style of reasoning, upon which the Court relies, obscures an
ill-disguised contempt for ordinary souls (the Johnsons of the world) and the
notion that their individual claims and desires deserve no particular respect.
They are counted en masse, by noses, and thus only do they count.
This analysis raises an
urgent question: given the insufficiency and inferiority of the Court’s reasoning,
what are the obligations of the Commission on Civil Rights in regard to the
ruling? Let it be affirmed at once: the Court’s ruling is absolutely binding on
the Commission, just as it is practically binding on the people as a whole, its
pernicious effects to the contrary notwithstanding. The Court’s ruling may be
distinguished from its argument, however. We, whether at the Commission or the
people at large, are under no obligation to conform our opinions to the dim
lights of the Justices. This is especially true where Court opinions are
manifestly inferior as logical and moral arguments. There has been much debate
about the notion of original intent. It can admit of no debate, however, that
the founders clearly intended Supreme Court Justices to be more accomplished reasoners
than majorities of late have been—not only legally but morally, philosophically,
historically, and religiously.
I have offered a cursory
examination of the Court’s reasoning, relying on no outside authority. I could,
of course, have developed the perspective of the dissenting opinion. I could as
well have recurred to the stirring language of a colorblind Constitution from
the Harlan dissent in Plessy, language that wended its way into the
heart of the people’s Constitution in spite of Supreme Court and entrenched
political inertia. I conceive it as important, however, that we take the full
measure of what serves us as law today. I do not conceal that I foresee ruinous
consequences proceeding from the Court’s ruling, not all of them traceable to
the Court itself. Much of the difficulty begins with the Court’s giving too
great credit to Congress’ hyperbolic intention to “eliminate the lasting
effects of discrimination.” This exceeds their power to realize. Although
Congress can assure and safeguard the opportunity for the people of this
country to accomplish that goal, Congress can never provide for it directly.
And it is by now clear that their exerting themselves on behalf of extreme
pretensions is an immediate cause rather of decline than of progress in civil
rights. It is regrettable that the Court has enlisted as a handmaiden in their
demarche.
The Johnson decision
imposes upon this Commission and the society in general (including public
agencies) efforts to improve gradually the representation of women and
minorities in work forces. This is an extrapolation from the strict decision,
approving the affirmative action plan of Santa Clara County, read by way of
the existing obligation to enforce Title VII of the Civil Rights Act in light
of this authoritative interpretation. The specific statistical plan of quotas
and decisions based squarely on gender or race in Johnson is not the
sole recourse for affirmative action purposes, nor was it presented as such by
the Court. On the other hand, insofar as it effectively attains the mandated
condition, “representativeness,” and does so comparatively more effectively
than other recourses, it acquires a legal and moral priority. In particular,
for this Commission it would take a strong justification to defend devoting
time to other measures, under pressure of the ruling in Johnson.
The consequences of this
reading of the law are manifest. The myriad statutory and regulatory provisions
that mandate affirmative action would now have renewed life and vigor.
Heretofore, compliance efforts throughout some governmental agencies and the
private marketplace, from churches and schools to multinational corporations,
have been little more than demonstration projects in comparison with what the
law demands. Worse, these efforts may be characterized as a mere form of paper
compliance, burdening the society with noxious reports, producing the
occasional show case, like Diane Joyce, but otherwise neither being carried out
in good faith nor producing any markedly discernible impact on the society.
The law is the law. Our
voices are not stopped. We may tell the truth about the law: it is bad law. It
may well destroy this society if fully enforced. Yet, it is the law. Accordingly,
it is in my view the immediate and urgent task of this Commission to demand
that it be fully and effectively enforced. It is not clear where the Court
discovered the mandate of gradualness in the law. We can take no comfort in its
presence, however, for we know not what pace of accomplishment will qualify as
gradual. A timeline of 20 years will be short to some and long to others. For
this Commission, then, which has no direct enforcement authority, I believe
that the idea of gradualness should be subsumed under the notion of immediacy.
We would then demand the immediate, full, and effective enforcement of the
law.
There will remain ambiguity about the objective of correcting “imbalances” in the work force and elsewhere. The law, according to the Court, requires correcting imbalances. An imbalance, however, is not per se an asymmetrical or non-analogical distribution vis-á-vis the general population. Therefore, it requires prior, authoritative determination just what kind of imbalance is meant. The Court has been content to resign that power into the hands of individual agencies, public and private. That, however, invites the abuse of interpreting as imbalance whatever “appears to us an imbalance.” Such concepts are far from manifest, though the Court spoke of “manifest imbalance.” They would be manifest only if supported by an equilibrium argument, of which I know none. Accordingly, believing it critical that this lacuna be filled, I ask that the Commission apply to Congress and the President for an authoritative determination, a statute fixing standards of imbalances, whereby we could more effectively pursue the task of monitoring and encouraging the enforcement of the law.
* Published in Toward an Understanding of
Johnson by the U.S. Commission on Civil Rights, Clearinghouse Publication
#94, October 1987.