All this makes for a long morning of head-scratching. Everyone seems to agree that the racial divisions in this country are a terrible problem, and almost everyone agrees that they need to be handled via subterfuge: The affirmative action camp is for “critical masses” that look like quotas and for “diversity” that may not bring about diversity. The anti-affirmative action camp is for pretending that other remedies work when it’s clear that you can’t fix race problems by ignoring race. These are not really legal questions at heart; they are almost insoluble social and moral ones. Take heart in the fact that the court at least respected us enough today to address them as such.
I agree that they are fundamentally social and moral issues. But it is important to realize that does not mean that we cannot deal with them rationally (for some people moral seems to equal irrational). After all, the legal system is, ultimately, a mechanism for maintaining and defining a value system. All this means is that they have to think very hard about what the definition of “equality” is (like they did in Brown v. Board of Education), and not try to reduce the issue to some procedural trick. I hope that they have the courage and foresight to do so, but I am not encouraged by the history of this court.