Cultural Revolutions

A Dissenting Voice

Judge Danny Boggs of the U.S. Court of Appeals for the Sixth Circuit is, for believers in the rule of law, a hero.  Judge Boggs, in an extraordinary dissenting opinion published in May, revealed profound problems with the majority of his court’s approach to law in an affirmative-action case and pointed out that his chief judge manipulated the make-up of the court that was deciding the case, in order to reach the result that the chief judge desired.  

At issue was the University of Michigan Law School’s policy of according preferences to members of certain “races,” most commonly African-Americans and Hispanics, ostensibly in order to achieve “diversity” in the law school’s student body.  The problem is that the U.S. Constitution, in the 14th Amendment, forbids any state from depriving any person of the “equal protection of the laws,” and the Supreme Court has declared that classification of citizens on racial grounds by the state is a deprivation of equal protection, unless it is done to promote a “compelling state interest.”  No one knows what a “compelling state interest” is, although, in this particular context, the Supreme Court has suggested that one might be the remedying of past instances of racial discrimination.  The University of Michigan Law School had argued, however, that its policy of preferring members of favored minority...

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