Monday, May 23, 2011

Affirmative Action and Public Opinion

The New York Times
Updated May 23, 2011, 12:11 PM
Jeffrey Rosen, a law professor at George Washington University, is the author of "The Most Democratic Branch: How the Courts Serve America."

On the Supreme Court, the debate over affirmative action purports to be a battle between two clashing constitutional principles. Conservative justices insist that the Constitution is colorblind in all circumstances, while liberal justices counter that it forbids only racial classifications designed to harm minorities, not to help them.
To justify their positions, both sides invoke the original understanding of the framers of the Fourteenth Amendment, which guarantees equal protection of the laws.
Don't be surprised if the Supreme Court's jurisprudence is affected by Norton and Sommers's study.
In practice, however, the Supreme Court’s affirmative action decisions have tended to follow public opinion. As Barry Friedman notes in "The Will of the People," in 1995, when the public was evenly split on affirmative action, the court restricted it; by contrast, in 2003, when support for affirmative action outweighed the opposition, the court became more permissive about allowing it.

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