Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Affirmative Action, Voting Rights, and Balancing Power (1)

Julia K. Stronks


June 28, 2013

By Julia K. Stronks

This is the first article in a two-part series.

This has been a big week for Supreme Court watchers.  Former students and I have texted and tweeted with abandon as each decision has been released. Our first response is almost always about policy. People convinced that racism remains a critical struggle are frustrated with the Court. They had hoped affirmative action and the Voting Rights Act would remain untouched. Others are frustrated because neither affirmative action nor the Voting Rights Act were held unconstitutional. 

But, if we believe that the structure of government is a tool to achieve public justice, we have another issue to consider. Does the Court’s approach to jurisprudence advance or detract from a just public order?  To answer this, we have to consider the history and the purpose of judicial balancing tests.

When the framers wrote the Constitution, they emphasized that dividing power was the only way to keep majority voices from dominating minority ones.  In the Federalist Papers, James Madison pointed out that because “men are not angels,” power had to balance power.  Many Christians recognize this as a reflection of the Fall and believe that dividing power is an important tool for pursuing justice. 

One way to divide power is to give courts the ability to declare laws passed by legislatures unconstitutional.  However, it can be hard to determine “constitutionality,” so the Court has developed a series of tests to apply when people believe their rights are violated.  Generally, laws meet the lowest level “rational basis test” when they advance a legitimate government interest.  This type of law will be upheld even if people say that it discriminates against them.  However, if a law contradicts a right that is explicitly stated in the Constitution or if it discriminates against someone in a “protected class,” such as race, the law has to meet a higher standard in order to be found constitutional.  It must pass the two-part “strict scrutiny test.” First, the government must have a compelling interest rather than a legitimate interest.  Second, the government must show that it has taken the least restrictive alternative to achieve its interest.  Another way of saying this is that the law must be narrowly tailored to fit the government interest.

These tests can be complicated and there is always debate about the difference between compelling interests vs. merely legitimate government interests.  But, this kind of debate is part of the process. We have hundreds of years of jurisprudence to guide us, and we have thousands of judges in lower courts who assess evidence on different sides of an issue.

On Monday, in Fisher v University of Texas, the Court affirmed that diversity in state university student bodies is a compelling interest of the government.  But, the Court pointed out that the method a university takes to achieve this diversity must be carefully scrutinized.  If race is going to be used as a tool to build diversity, a university must use evidence to demonstrate that there are no other good alternatives.  In this case, the “least restrictive alternative” prong of the strict scrutiny test did not fail but it had not been sufficiently analyzed.  The Supreme Court sent the case back down to the lower court saying it should assess data to determine whether the affirmative action policy was sufficiently narrowly tailored.

On Tuesday, in Shelby v Holder, the Court affirmed that equality in voting is a legitimate interest of government.  However, the means used to achieve the interest lacked rationality, failing even the low-level rational basis test. The Court said that the structure of the Voting Rights Act was constitutional but the states that were covered by it were selected using evidence that was very old.  Congress may continue to involve itself in reviewing state voting decisions, but it must do so based on modern-day evidence.

In both cases, the Court majorities held that more data is needed.  Not everyone agrees with this, of course. In a dissent in Fisher, Justice Clarence Thomas argued that studies clearly show affirmative action hurts rather than helps minorities. In a dissent in Shelby, Justice Ruth Bader Ginsburg demonstrated that minorities clearly continue to be treated unfairly in voting.   But, as Alexander Hamilton pointed out long ago, courts do not have the power of the purse (legislators) or the sword (executive branch).  Judges will influence our thinking and hold parts of our policy unconstitutional; they will even disagree about the evidence.  However, then we go back to discussion and continue to debate the best way to shape our community. Both affirmative action and the Voting Rights Act are still on the table, and it is still our job to talk about how best to protect the rights of all groups of people.  For public justice, that conversation is a good thing.

- Julia K. Stronks has practiced law and has a Ph.D. in political science.  She holds the Edward B. Lindaman Chair at Whitworth University in Spokane, Washington.

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”