When Equality Means Injustice

In many cases decided by the US Supreme Court, argues professor Timothy Golden, there is a “profound difference between what is legal and what is just.”

  • September 30, 2019
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  • 5 Questions
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  • By Jefferson Robbins

You could say American courtrooms are where philosophy becomes reality. A lawyer by training who’s now a professor of philosophy, Timothy Golden is a keen observer of that process — particularly cases like the landmark Regents of University of California v. Bakke, in which the US Supreme Court tried to weigh a White student’s claim of discrimination against the historical wrongs that courts had been trying to address since 1865.

“There’s a social and political death that happens to African Americans specifically, and other people of color in general, when their history is ignored,” says Golden, a Walla Walla University professor and director of legal studies. “Bakke is an instantiation of that principle, of that phenomenon of ignoring history.”

The court’s finding — that Allan Bakke suffered reverse discrimination because of medical-school quota systems that required a certain number of minority students be admitted — has its echoes today, Golden says. In cases like Shelby County v. Holder, which nullified key elements of the Voting Rights Act, the highest court has at times set back the country’s tottering attempts at racial justice. Golden offers an overview of these kinds of cases in his Speakers Bureau presentation “Equality on Trial: Race, Fairness and the US Supreme Court.”

“History is often ignored in Supreme Court precedent, beginning with the Bakke decision, in an attempt to treat everyone equally,” he says. “We see in the Bakke decision a profound difference between what is legal and what is just.”


Humanities Washington: Has Bakke acted as a basis for subsequent Supreme Court decisions?

Timothy Golden: Yes, in a couple of cases from 2003 — Gratz v. Bollinger and Grutter v. Bollinger. One of them related to the University of Michigan’s undergraduate admissions, and the other related to admissions for the law school. And so racial quotas get struck down, because Whites also have rights under the Constitution. You have this reciprocity of legal rights and obligations that really causes the law to fall short in what it can accomplish from a moral standpoint. The reciprocity and symmetry of courts of law demands that everyone in a sense be treated equally, or be treated the same. And as a result, you’re not really going to get the moral result — the legal system will give you a legal result, but it won’t necessarily be a just one. Sometimes, we have to temper our expectation of what the courts can do for us, because unlike the other two branches, citizens have to approach the courts. Courts don’t really make policy, they don’t really have a say, like the President or Congress does. Despite the power of judicial review, if the case never gets to the courts, then the courts can’t do anything about it, unlike Congress.

Did the Bakke finding against “quotas” give a cudgel to opponents of racial progress?

I think so. What the Bakke decision did was it gave a constitutional legitimacy to Whites using the 14th Amendment, which historically has been used to apply to African Americans who made claims of racial discrimination. And of course, as a historical matter, the 14th Amendment is one of the civil rights amendments, formulated right after the Civil War. What it attempted to do was offer citizenship rights and fair treatment to newly freed slaves. It’s astonishing to me that that history gets disregarded, and a White person applying to medical school can clothe himself in the garb of the 14th Amendment. That story in itself is just a fascinating example to me of the fundamental shortcomings of the law to achieve justice. How in the world does Alan Bakke’s demographic fit within the historical confines of the 14th Amendment? Well, it doesn’t seem that it would, but because of this emphasis on equality, we end up ignoring history.

Is “fairness” the same as justice?

Equality and fairness are, I think, at a very fundamental level, distinct from one another. I make a narrative allusion to a parent who disciplines their children and banishes them both to their rooms. One child is introverted, and the other is extroverted. So the extrovert is climbing the walls, but the introvert is enjoying themselves. That’s what happens when you ignore the particularity of one child in favor of treating both the same.

It’s almost as if the law suffers from a kind of autoimmune disorder. Every attempt to help someone through the law almost always winds up hurting someone else.

Does “fairness” inevitably wind up favoring the majority?

I think there’s fairness as a moral concept, which is sort of above and beyond any hypothetical. But then there’s fairness in terms of what the litigants think they can live with going forward. I think a lot of people, when they go to court, may not get what they want, but they may still walk away thinking, “This was reasonably fair.” But either way, whether we’re talking about a transcendent concept of fairness or a concept of fairness that’s more pragmatic, I think it is fundamentally different from the law. It’s almost as if the law suffers from a kind of autoimmune disorder. Every attempt to help someone through the law almost always winds up hurting someone else — even as the body, in an attempt to heal itself, can end up doing harm to itself in physical terms.

What have you learned about these questions by studying and writing about Derrick Bell?

The fascinating thing about Derrick Bell is that on one hand, he tells us that racism is permanent, but on the other hand, he tells us we have a moral obligation to resist it. This becomes almost a silly, paradoxical request — but Bell argues the victory against racism is not in overcoming it, but rather in the struggle against it. There’s almost this Sisyphus-like struggle to find meaning in making some gains, only to realize the stone has rolled all the way back down the hill again, and we have to start over. Whenever there have been so-called gains for African Americans, they really haven’t been gains at all, but just an illustration of what happens when the hopes and dreams of African Americans happen to coincide with the economic and political interests of Whites. Derrick Bell argues that Brown v. Board of Education was actually a case that had nothing to do with the moral wrongness of segregation, but rather had everything to do with the perception of America in a Cold War era when the Russians could point to the United States and say that America doesn’t even treat its Black people the right way. And, oh, by the way, an incidental benefit of that to Black people was they were no longer forced to attend substandard educational facilities. We should not take any of these instances as racial progress, but as mere symbols.

Timothy Golden is a professor at Walla Walla University. He is currently presenting his free Humanities Washington Speakers Bureau talk, “Equality on Trial: Race, Fairness, and the US Supreme Court,” around the state. Find an event>

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