Rick Pildes on Johnson v. California

JB

Someone forwarded your interesting post on yesterday's Johnson decision regarding racial classifications. I agree that Thomas's endorsement of the use of "race as a proxy" is an odd position. But I also think the Ginsburg concurring position is equally incoherent or at least unfathomable to me. It would be one thing to take the view that only racial classifications that are subordinating should be subject to strict scrutiny. But once you conclude that non-subordinating racial classifications can also be unconstitutional when used too casually, for reasons like administrative convenience, then I don't see as a formal or logical matter how you can avoid the conclusion that all racial classifications must be subject to strict scrutiny. The obvious reason is that even classifications that reflect a benign, integrative or similarly acceptable purpose at a high level of generality can nevertheless be employed in ways that also too casually, for reasons like administrative convenience, use the racial proxy or classification when not a truly necessary or sufficiently justified means to the acceptable purpose. And there's no way to test adequately whether that's going on, even with non-subordinating uses of race, without apply strict scrutiny, for the reasons you suggest in Johnson. An example: distinct admissions processes for white and black applicants, say different admissions committees, as Texas used to use. Once you accept there's a technocratic component to the judicial evaluation of racial classifications -- that even when used for acceptable purposes, racial classifications must be well tailored to be constitutional -- I don't see how you can avoid the conclusion that strict scrutiny must always be used to effectuate that technocratic concern for properly tailored uses of race. Of course this all about the standard of review, nothing about applications, and perhaps nothing of substance would turn on how the standard is defined. But the choice of standard of review is what's at issue and does reveal much about how to conceive the legal treatment of race.

The interesting point that emerges for me is not that this case reveals Thomas and Scalia to be inconsistent: it's that both the right and the left of the Court end up taking such incoherent and inconsistent positions on racial categories. That reveals something, perhaps, about how deeply confused both the poles are, on the Court and maybe elsewhere, about these issues -- or how much the underlying ideological assumptions about the substance of the policies at issue (assumptions not actually tested by facts in these standard-of-review cases) influence the standard of review choice. This might also reveal that, for all the criticisms of O'Connor for being too ad hoc, pragmatic, or whatever, her insistence along with Powell that the standard of review must also be strict scrutiny, however applied in specific contexts, is the only consistent position that can be taken -- however surprising that conclusion might be.