Washington. -- The Supreme Court would have made significant history, and would have made many people in the political branches ecstatic, if on Monday Justice Scalia had been giving the judgment for the court rather than merely concurring in that judgment when he said this:
"Government can never have a 'compelling interest' in discriminating on the basis of race in order to 'make up' for past racial discrimination in the opposite direction."
Instead, in a case concerning racial preferences in federal contracting, a splintered court demonstrated that it is so tangled in the toils of its hair-splitting reasoning about race-based government action, so mesmerized by its classifications that do not helpfully classify and its distinctions that do not usefully distinguish, that only the political branches can rescue the nation from the racial spoils system that has been metastasizing for decades.
The political branches would, as usual, prefer that the court take the heat.
The case arose in Colorado, where a highway construction contractor took a (forgive the oxymoron) legal bribe.
The briber was the federal government. It offers contractors financial rewards (in this case, $30,000) for giving work to subcontractors who do not offer the lowest bids but who are owned by members of certain groups.
These are groups that the government presumes -- no particular proof required -- to be in some sense victims of discrimination, or groups consisting of "socially and economically disadvantaged individuals."
The low bidder for a subcontract to build guard rails was a firm owned by a white male. The firm that built the guard rails is Hispanic-owned. There was no showing of past discrimination in Colorado's highway construction trade, but Hispanics enjoy the government-conferred advantage of being certified as disadvantaged. So do African-Americans, Native Americans, Asian Pacific Americans and women.
We are at the shore of deep metaphysical waters: Is not the white male who owns the company that lost the guard-rail contract demonstrably "socially and economically disadvantaged" because he is not the beneficiary of a government edict declaring him so?
That white male in Colorado claimed that the government's racial-preference scheme denied him equal protection of the laws. A lower court disagreed, and so did an appeals court which, following a Supreme Court ruling now overturned, held that remedial race-based actions by the federal government should be judged under a lenient standard of scrutiny. The appeals court said race-based policies are constitutional if narrowly tailored to achieve a "significant governmental purpose."
Wrong, said the Supreme Court on Monday. Henceforth, the appropriate standard for federal as well as state and local governments is "strict scrutiny," under which a race-based action only passes constitutional muster if it is narrowly tailored to serve a "compelling governmental interest." Is that clear?
Certainly not. By what standard is the "compelling" to be distinguished from the merely "significant"? The 5-4 ruling (Justices O'Connor, Rehnquist, Scalia, Kennedy and Thomas more or less on the same side, Justices Stevens, Souter, Ginsburg and Breyer on the other) settled nothing, except that the case must be reconsidered in a lower court.
Justice Scalia's two-paragraph concurrence provided the thought on which the political branches should act: "Individuals who have been wronged by unlawful discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or debtor race. . . . In the eyes of government, we are just one race here. It is American."
And Justice Thomas, concurring, tartly denied that there is "a racial paternalism exception to the principle of equal protection."
Justice Stevens, who in this case was joined in dissent by Justice Ginsburg, has hitherto stressed that classifications based on race are potentially very "harmful to the body politic" and inherently quite "pernicious."
Justice Ginsburg, joined by Justice Breyer in an almost laconic dissent, said that "in view of the attention the political branches are currently giving the matter of affirmative action, I see no compelling" -- that talismanic word again -- "cause for the intervention the court has made in this case. . . . I would not disturb the programs challenged in this case, and would leave their improvement to the political branches."
The nation's fundamental law would be improved by incorporating the Scalia-Thomas doctrine that such programs, being starkly incompatible with the equal-protection guarantee, cannot be "improved" to the point of constitutional respectability.
Unfortunately, seven justices are still willing to defer, to varying degrees, to the political branches' desire to have such programs. Fortunately, although only Providence can change the court, the political branches are more malleable.
George F. Will is a syndicated columnist.