(4) A rule forbidding voluntary affirmative action would certainly constitute an intervention in traditional management decisions, therefore violating the principle supporting section 703(j), and it would be, moreover, not an intervention advancing the core policy of economic equality but one impeding that policy, and so condemned by that principle a fortiori. For all these reasons, the statute should not be construed to forbid the Kaiser plan. Is this a good argument? It does not in any way personify Congress, or presuppose a congressional intention, in either sense, to exempt private and voluntary rate-conscious employment plans from the act. So it does not suffer from the mistakes of Brennan's first argument, or of Rehnquist's opinion. It rests instead on a different theory of legislation, which we might call the coherence theory. This supposes that a statute should be interpreted to advance the policies or principles that furnish the best political justification for the statute. It may, of course, be controversial which principles or policies supply the best justification or a particular statute, or for some particular provision or limitation of that statute. Nor is it possible to state any mechanical formula for determining the answer to that question. A proposed justification cannot be accepted, of course, unless it is consistent with the provisions of the statute and finds substantial support in the political climate of the time. The justification Brennan provided for Title VII of the Civil Rights Act-the policy of promoting economic inequality between the races, subject to the principle that private employers should not be forced to maintain a racial balance-meets that test of consistency. The main provisions of Title VII, which forbid traditional discrimination against blacks, could be expected to reduce economic inequality, and though the various speeches Brennan cited, which include a statement by President Kennedy as well as statements by various senators, do not establish that all the congressmen had this justification in mind, they do establish that the justification had wide currency and political appeal. But though Brennan's proposed justification does meet this test of consistency, other, different justifications might meet the test as well. It is, in fact, easy to construct a different justification according to which the coherence theory of legislation would support not the decision of the majority in favor of affirmative action but Rehnquist's opinion condemning it. We might say that Title VII is justified, not by a policy of promoting economic equality, but by the principle that any use of raceconscious criteria in hiring or promoting employees is unfair. That principle also fits the central provisions of the statute, and it is also supported by a substantial section of political opinion. But if that principle is taken to be the justification of Title VII, rather than the policy of promoting racial equality, then it is a decision for Weber, rather than a decision in favor of the Kaiser plan, that is most consistent with the statute so justified. How is a court to choose between two justifications for a statute, each of which fits the statute and finds a basis in political opinion? Of course, if one of these justifications has been attached to the statute as an institutionalized intention, through some legislative convention of the sort described earlier, then the court must apply that justification even though it prefers another. If the legislative history shows that while one justification had great support among a number of legislators, the other went unnoticed or was rejected by all who noticed it, then that might well be some evidence that the second does not, after all, reflect any widespread political opinion. But in most hard cases testing whether a statute applies in controversial circumstances, when there are two justifications available that point in opposite directions, both justifications will fit well enough both the text of the statute and the political climate of the day, and neither will be attached to the statute by convention. Weber was such a case. In these cases I see no procedure for decision-no theory of legislation-other than this: one justification for a statute is better than another, and provides the direction for coherent development of the statute, if it provides a more accurate or more sensitive or sounder analysis of the underlying moral principles. So judges must decide which of the two competing justifications is superior as a matter of political morality, and apply the statute so as to further that justification. Different judges, who disagree about morality, will therefore disagree about the statute. But that is inevitable, and if each judge faces the moral decision openly, an informed public will be in a better position to understand and criticize them than if the moral grounds of decision lie hidden under confused arguments about nonexistent legislative intents. It is no use protesting that this procedure allows judges to substitute their own political judgment for the judgment of elected representatives of the people. That protest is doubly misleading. It suggests, first, that the legislators have in fact made a judgment so that it is wrong for the judges to displace that judgment. But if there is no institutionalized intention, no pertinent collective understanding, and two competing justifications, there is no such judgment. Second, the protest suggests that judges have some way to decide such a case that does not require them to make a political judgment. But there simply is no such procedure, except a method that leaves the decision to chance, like flipping a coin. The jurisprudential point at stake here can be put two different ways. We can say that the legislation a statute produces, when the words of the statute are indecisive and there is no institutionalized intention, directly depends upon political morality. When a court asks, for example, whether Congress outlawed affirmative action in Title VII, the court must ask, as part of that question, whether affirmative action is unfair, because if it is, then Congress did. Or we can say that, in such a case, what Congress has done is not uncertain, but rather indeterminate: it has neither outlawed affirmative action nor not done so, so that when a court decides on the basis of a judgment about the fairness of affirmative action it cannot be displacing a congressional judgment either way. It must be supplementing that judgment in the only rational way available to it. I believe that the first of these two descriptions is more accurate: it reflects a deeper understanding of the complex idea of legislation. But the second may seem more sensible to lawyers who favor more traditional theories of that institution. The difference is not important in the present context, because under either interpretation the objection to the majority's decision in Weberthat that decision is based on the judges' own beliefs about the fairness and wisdom of affirmative action-is no objection at all. We can now see why Rehnquist's bitter condemnation of the majority was so misguided. Weber offered the Supreme Court not an exercise in reconstructing the mental states of a variety of senators and congressmen but a serious and complex issue about the nature of discrimination and the fairness of affirmative action. It was, in fact, the same issue that the Court faced in Bakke, but did not, as a Court, answer. Discrimination of the conventional sort, practiced against blacks in America for centuries, is wrong. But why? Is it wrong because any race-conscious distinction is always and inevitably wrong, even when used to redress inequality? If so, then it would be correct, under the coherence theory of legislation, to interpret Title VII as outlawing all such distinctions in employment. Or is traditional discrimination wrong because it reflects prejudice and contempt for a disadvantaged group, and so increased the disadvantage of that group? In that case, it would be sounder to attribute to Title VII the different program of outlawing such malign discrimination, and seeking to remove its inegalitarian consequences, and it would be perverse, rather than sensible, to understand the statute to bar private efforts in that direction.2 Either decision in the case-the decision of the minority as well as that of the majority-must be supported by some answer to these questions if it is to be supported at all. Chief Justice Burger's remark-that he would vote to permit plans like Kaiser's if he were in Congress, but nevertheless believed that Congress had made them illegal-is therefore more perplexing than it first appears. If Burger's interpretation of Title VII can be supported only by supposing that affirmative action is wrong as a matter of moral principle, and if he does not think it wrong, because he would have voted to permit it if he were in Congress, he cannot continue in his opinion of the law. If he accepted the jurisprudential argument of this essay, that is, he would have to switch his vote in Weber and later cases. We cannot make the same assumption about Rehnquist's dissenting vote. He argued, as I said, that he was forced to his vote by neutral arguments of statutory construction. But even if he accepted that no such arguments are in fact available, and that any decision in the case must reflect some answer to the question of political morality, he might still answer that affirmative action is unfair and that Kaiser's plan is for that reason barred by the statute. Nothing in his opinion suggests or assumes the contrary. What of the five judges who made up the majority? Four of them-Justices Brennan, Blackmun, Marshall, and White-voted in Bakke to uphold the constitutionality even of the quota plan used by the Davis Medical School to assure a fixed proportion of minority students. Their votes assumed that even a quota plan did not invade the fundamental political rights of white students who were thereby denied places. So their votes in Weber are consistent with their votes in Bakke, even if we assume that their Weber votes were based on Brennan's second and more successful argument. The fifth justice forming the majority was Mr. Justice Stewart, and that fact is, I think, of some importance. 2 For a discusssion of this important issue, see my articles "Why Bakke Has No Case." NYR, November 10, 1977, and "The Bakke Decision: Did It Decide Anything?" August 17, 1978. The Bakke decision was indecisive because the four justices who held that the Davis plan was illegal under Title VI of the Civil Rights Act expressed no opinion on whether it was unconstitutional, and therefore no explicit opinion on the underlying issue: the moral issue of the fairness of affirmative action. Stewart was one of these, and his present vote with the majority in Weber is especially important if it does signal his acceptance of Brennan's second argument, because that would establish a clear majority in favor of the principle that affirmative action of the sort used in Weber-a race-conscious policy aimed at improving racial equality and not subjecting any one to disadvantage because his or her race is disfavored-offends no one's political rights. I put this point in a guarded way, because my argument does not supply any firm basis for predictions about future affirmative action cases. Stewart may have joined the majority because he accepted some argument about legislative intent, like Brennan's first argument. In any case the majority opinion Stewart joined is carefully limited in various ways. It emphasizes, for example, that the Kaiser plan was limited to securing rather than also maintaining a racial balance, and though that distinction is irrelevant as a matter of moral principle, it might be used to limit the impact of the decision for the future. The opinion stresses, moreover, that it is an interpretation of one title of the Civil Rights Act only, and does not speak to any constitutional issue. Nevertheless the development of constitutional law is governed more by the latent moral principles that are presupposed by a good justification of Supreme Court decisions than by the more technical arguments and limitations set out in the discrete opinions, and this is especially true when, as in Weber, these more technical points do not withstand close analysis. The Court's decision in Weber is of great importance, and not simply because it permitted valuable programs developed by private initiative to go forward. For all its careful limitations, the case marks another step in the Court's efforts to develop a new conception of what equality requires in the search for racial justice. In retrospect, that step will seem more important than the Court's hesitant shuffle in Bakke. PART III-KEY CASES 312 OCTOBER TERM, 1973 Syllabus 416 U.S. DEFUNIS ET AL. v. ODEGAARD ET AL. CERTIORARI TO THE SUPREME COURT OF WASHINGTON No. 73-235. Argued February 26, 1974-Decided April 23, 1974 PER CURIAM. In 1971 the petitioner Marco DeFunis, Jr.,' applied for admission as a first-year student at the University of Washington Law School, a state-operated institution. The size of the incoming first-year class was to be limited to 150 persons, and the Law School received some 1,600 applications for these 150 places. DeFunis was eventually notified that he had been denied admission. He thereupon commenced this suit in a Washington trial court, contending that the procedures and criteria employed by the Law School Admissions Committee invidiously discriminated against him on account of his race in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. DeFunis brought the suit on behalf of himself alone, and not as the representative of any class, against the various respondents, who are officers, faculty members, and members of the Board of Regents of the University of Washington. He asked the trial court to issue a mandatory injunction commanding the respondents to admit him as a member of the first-year class entering in September 1971, on the ground that the Law School admissions policy had resulted in the unconstitutional denial of his application for admission. The trial court agreed with his claim and granted the requested relief. 1 Also included as petitioners are DeFunis' parents and his wife. Hereafter, the singular form "petitioner" is used. | (1062) 312 DEFUNIS v. ODEGAARD Per Curiam 315 DeFunis was, accordingly, admitted to the Law School and began his legal studies there in the fall of 1971. On appeal, the Washington Supreme Court reversed the judgment of the trial court and held that the Law School admissions policy did not violate the Constitution. By this time DeFunis was in his second year at the Law School. He then petitioned this Court for a writ of certiorari, and MR. JUSTICE DOUGLAS, as Circuit Justice, stayed the judgment of the Washington Supreme Court pending the "final disposition of the case by this Court." By virtue of this stay, DeFunis has remained in law school, and was in the first term of his third and final year when this Court first considered his certiorari petition in the fall of 1973. Because of our concern that DeFunis' third-year standing in the Law School might have rendered this case moot, we requested the parties to brief the question of mootness before we acted on the petition. In response, both sides contended that the case was not moot. The respondents indicated that, if the decision of the Washington Supreme Court were permitted to stand, the petitioner could complete the term for which he was then enrolled but would have to apply to the faculty for permission to continue in the school before he could register for another term.2 We granted the petition for certiorari on November 19, 1973. 414 U. S. 1038. The case was in due course orally argued on February 26, 1974. In response to questions raised from the bench during the oral argument, counsel for the petitioner has informed the Court that DeFunis has now registered "for his final 2 By contrast, in their response to the petition for certiorari, the respondents had stated that DeFunis "will complete his third year [of law school] and be awarded his J. D. degree at the end of the 1973-74 academic year regardless of the outcome of this appeal." |