Vol. 28 No. 7 (December 2018) pp. 91-93THE RHETORICAL INVENTION OF DIVERSITY: SUPREME COURT OPINIONS, PUBLIC ARGUMENTS, AND AFFIRMATIVE ACTION, by M. Kelly Carr. East Lansing: Michigan State University Press, 2018. 310pp. Paper $49.95 ISBN: 1611862841.
Reviewed by Stephan Stohler, Department of Political Science, SUNY, University at Albany. Email: sstohler@albany.edu.
With the appointment of Justice Brett Kavanaugh, conservatives on the U.S. Supreme Court finally seem well positioned to strike down affirmative action in college admissions. This end has been long in the making. Since the 1970s, many conservatives on the campaign trail, in the Department of Justice, and on the federal bench have taken a dim view of these race-conscious, results-oriented policies. What is surprising, however, is that it has taken so long. Republican presidents have appointed a large majority of the justices to the Supreme Court since 1970. And yet, the conservative bloc has never quite been able to find the necessary five votes to advance a “colorblind” interpretation of relevant civil rights statutes or the Constitution's Equal Protection Clause that would prohibit universities from considering race in college admissions. Instead, at key moments over this forty-year time span, some of those conservative judges have eschewed colorblind arguments in favor of an alternative idea that – at least for now – dominates. Specifically, the Court has held that universities can sometimes use affirmative action policies to help them capture the educational benefits which flow from a diverse student body.
That argument and its origin in Supreme Court jurisprudence are the topic of M. Kelly Carr's new book, THE RHETORICAL INVENTION OF DIVERSITY. Specifically, Carr documents how Justice Lewis Powell, the conservative justice responsible for introducing the diversity argument at the Supreme Court level, crafted his famous, peculiar opinion in REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE (1978). I say peculiar because although Powell announced the Court's conclusion in the matter, no single justice was willing to join Powell's entire opinion, much less his diversity rationale. As we know, Powell's more conservative colleagues condemned the affirmative action policy in question because it violated a colorblind interpretation of Title VI of the Civil Rights Act of 1964; his more progressive colleagues endorsed the policy because it remedied historical injustices.
THE RHETORICAL INVENTION OF DIVERSITY is focused first and foremost on how judges craft their opinions. Carr's core thesis is that judges examine the rhetorical choices available to them and then craft arguments best suited to their situation by drawing on cultural resources to defend their conclusions. They select those answers that they believe “meet the needs of the legal question, the legal institution, and the broader public audience and context” (p. 27). And, when justices cannot find an existing answer that meets these criteria, they craft their own, as Justice Powell did in BAKKE. To support this claim, Carr systematically examines the full range of arguments found in previous decisions and the many amicus briefs submitted in BAKKE; the memoranda and notes between Powell and his law clerk, Bob Comfort; and various drafts of the opinion itself. What emerges is a provocative story with significant theoretical implications for our study of judicial behavior and legal opinions.
Carr’s endeavor is a success. This book situates Powell’s opinion within a much larger range of potential arguments that Carr develops from the approaches advocated in a record-breaking number of amicus briefs. As expected, these briefs not only supplied the Court with a range of material from which justices might find an answer, but also insight into how various rhetorical decisions might play out. For example, in a well-documented exchange between Justice Powell and Comfort, Powell [*92] demonstrated substantial reluctance to support affirmative action as a remedy for historical injustices because such an approach would risk “delving into the intractables . . . of deciding whose ox has been gored more often and for how long” (p. 135). The way forward, at least from Powell’s perspective, was to find some balance between those briefs, which largely condemned the creation of a system of racial entitlements, and those defending the use of race-conscious decision making to redress social dislocation. Powell found a partial answer in the briefs supplied by a handful of elite universities, arguing that a strong liberal education required exposure to a range of viewpoints. These exchanges between Powell and Comfort are perhaps the most illuminating in the entire book, documenting Powell's rhetorical decisions to transform a relevant answer based on a new set of values that went beyond what the immediate parties envisioned.
There are many important lessons to learn from Carr's book and three are particularly relevant. First, we often focus on the substance of judicial opinions to engage with the merits of judges' arguments. Far less often, though with notable exceptions, do we try to account for the presence or absence of those ideas and arguments themselves. And yet this enterprise seems important precisely because those arguments can come to dominate legal decision-making outside of the courts. The diversity argument is an excellent example. While Powell’s diversity argument failed to carry the day in BAKKE, research by Ellen Berrey (2005, 2015) Frank Dobbin (2009), and others demonstrates that the diversity argument has taken on a life of its own in various settings outside of the legal system. Collectively, this evidence suggests that courts can be important leaders in redefining the meaning of controversial policies like affirmative action that go well beyond final votes cast.
Second, Carr's focus on judicial invention is important from a theoretical perspective. We often take the Court’s conclusions to be the conclusions of the Court. But there is an important distinction between those cases where the Court’s justices endorse the views of some participants in litigation and those where judges advance their own novel interpretations. In the former category, the Court may well be exercising judicial review in counter-majoritarian ways, but with the benefit of support from elected officials, for example, who have signaled their support for such behavior. In the latter category of cases, however, the Court’s members clearly abandon any commitment to the judiciary’s so-called “passive virtues” by simply endorsing evolving understandings of law. Rather, in these types of cases, the judge is the driver of change and Professor Carr’s book demonstrates what this process looks like in precise detail.
Third, and relatedly, Professor Carr’s book provides an unflinching reminder of the work that goes into appellate-level judging. This is an impressive piece of scholarship that draws a tremendous amount of value from the study of how one justice worked with one law clerk to draft one opinion in one case. Carr achieves this by remaining acutely focused on the way that Justice Powell crafted his opinion in BAKKE, recognizing that there might be opportunities for Powell to persuade his counterparts to join his decision, but ultimately acknowledging that he had to satisfy a larger audience as well for him to have his way. The BAKKE opinion that the rest of us read was fundamentally shaped by these demands and constraints, and yet nonetheless offered enough room for rhetorical invention that would have important effects on affirmative action for at least the next forty years. For these contributions, the book deserves the serious attention it will undoubtedly receive.
REFERENCES:
Berrey, Ellen C. 2005. “Divided over Diversity: Political Discourse in a Chicago Neighborhood.” CITY & COMMUNITY 4(2):143–70.
Berrey, Ellen C. 2015. ENIGMA OF DIVERSITY: THE LANGUAGE OF RACE AND THE LIMITS OF RACIAL JUSTICE. Chicago: University of Chicago Press. [*93]
Dobbin, Frank. 2009. INVENTING EQUAL OPPORTUNITY. Princeton: Princeton University Press.
CASES:
REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE, 438 U.S. 265 (1978).
© Copyright 2018 by author, Stephan Stohler.
