June 23, 2003

Racial descrimination is constitutionally protected -- that's the bottom line truth of the matter coming out of the Supreme Court today. But only whatever sort of decrimination the particular members have a taste for at the given moment -- this might be different depending on what racial or social results each of the folks on this body might prefer at some different point in the future. Politics and institutional bureaucracies will largely determine who these people are and what racial descrimination preferences these folks will have at any point in time. None of this will rely on principles written or unwritten in our liberal constitution -- it will continue to be a matter of the personal social tastes of the particular members of the Supreme Court. What you have, in other words, is judicial pragmatism as explained and endorsed by Richard Posner in his new book LAW, PRAGMATISM, AND DEMOCRACY, which I discussed here. So if the personal tastes and concerns of the members of the Supreme Court lead them to prefer certain national security outcomes, there is nothing in principle to stop us from taking the road back to Manzanar. It's all a matter of the pragmatics of the moment, reflecting the personal wishes of nine men and women with a lifetime privilege to rule over the rest of us. And as you may have guessed, I don't think this is a really great idea.

Posted by Greg Ransom