Scalia’s shock that the court would intervene in the culture wars will remind readers from an older generation of Claude Rains’s shock in Casablanca at finding gambling going on – or, for a younger generation, Homer Simpson’s “d’oh” response to the obvious. Culture wars aren’t permanent, but political contention is. Political scientists have known for years that the court takes sides on questions that divide the public along political lines.
     Even more, they’ve known that the court usually sides with the winners. Political scientist Robert Dahl of Yale University wrote in a classic 1957 article that the court never stood against a sustained national political majority for very long. Even more, sometimes the court spots the direction the wind is blowing,
and ratifies emerging public judgments, cloaking its decision in the language of the Constitution. The gay rights case fits the political scientists’ understanding of the Supreme Court like a glove.
     The recent affirmative action cases pose some real problems for Scalia’s attack on judicial intervention in the culture wars. Affirmative action no less than gay rights is a topic of battle in the culture wars. But Scalia wasn’t at all hesitant about invoking the Constitution to strike down affirmative action.
     Of course there are differences – legal as well as cultural – between the two topics. Scalia thinks that the Constitution’s language more clearly prohibits the use of race in legislation than it prohibits intrusions on sexual privacy – although in fact one has to do just about as much analytic work to get a ban on racial classifications for all purposes out of the Constitution’s language as to get a ban on legislative regulation of sexual privacy.
     Culturally, elites support affirmative action and gay rights, so perhaps Scalia’s position is anti-elites. Yet, affirmative action was legal in Michigan. Michigan’s elected legislature hadn’t seen fit to tell its university administrators not to use affirmative action.
In this area, then, elite views might not be that different from popular ones.
(Maybe Scalia thinks that the administrators of public universities have somehow gotten out of the control of their state legislatures, and that anti-affirmative action initiatives in California and Washington more accurately represent the views of Michigan’s voters than Michigan’s university administrators and legislators do. But Scalia certainly doesn’t make that case in the affirmative action cases.) Justice Thomas made a somewhat different, and more important, point about elite support for affirmative action in universities. Thomas said, basically, that affirmative action was a cheap, easy, and probably ineffective policy for addressing the real problems about the education American society provides for African Americans. Thomas chided elites for focusing attention on affirmative action policies rather than doing something about the quality of education in elementary and secondary schools.
     Of course, finding affirmative action unconstitutional wouldn’t force elites to pay more attention to elementary and secondary schools. But Thomas is right about one thing. People who have studied policies for increasing African-American participation in professions such as law and medicine agree that affirmative action policies in professional schools, and even for undergraduate admissions, can’t do much. The only truly effective policies involve interventions in the “pipeline,” the supply of young people interested in law and medicine. Those interventions have to come very early – typically, in the elementary schools – to generate substantial increases in the number of African-American professionals.
     Liberals pleased with the Court’s decisions in the affirmative action cases shouldn’t lose sight of Thomas’s point: Affirmative action may be fine (and constitutional), but it’s not going to be enough. Policymakers need to address themselves to early interventions as well.