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 groups   over others was justified not because of past discrimination, but because of the goal of promoting “diversity,” which, it further argued, ought to count as a “compelling state interest.” 

The Supreme Court, however, has never held that promoting “diversity” is a “compelling state interest,” although Justice Lewis Powell, in one case, had opined that diversity might be one.  Powell’s opinion, as Boggs pointed out, was what lawyers call “dicta”—that is, a gratuitous pronouncement not necessary for the holding in the case.  That didn’t stop the majority in the Sixth Circuit from following Powell in this case, even though the lower court and one other federal circuit court had quite properly refused to accept Powell’s opinion as binding.  Worse, even Powell’s opinion had held that, when following a “compelling state interest,” the state had to tailor its racial discriminations in a manner that fulfilled the purpose at hand but did not, under any circumstances, involve racial “quotas.” 

The University of Michigan Law School argued that, while it did set aside a number of places for favored minorities, these should not be regarded as quotas but as a minimum “critical mass.” In the words of the majority opinion, there would be a rough number sufficient “to ensure under-represented minority students do not feel isolated or like spokespersons for their race, and do not feel uncomfortable discussing issues freely based on their personal experiences.”  The majority bought this weird argument, but Judge Boggs nicely pointed out that, in practice, there was no real difference between “quotas” and “critical masses.” 

Exposing the quite dubious legal holding of the majority was a service, but the real heroism came from Boggs’s detailing in a Procedural Appendix, how his court’s chief judge had manipulated the panel initially dealing with the case, as well as the eventual hearing by all of the sitting judges.  In particular, the chief judge, who wrote the majority’s opinion, had arranged the timing of the hearing to exclude two judges whom the chief judge believed to be hostile to the supposed constitutionality of the affirmative-action plan.  In effect, he guaranteed the result he wanted, since the addition of these two would have meant that there would have been a majority of judges who doubted the constitutionality of the law school’s scheme.

Predictably, Judge Boggs’ revelation of this chicanery caused an outcry.  One of his colleagues in the majority complained that Judge Boggs’ appendix suggested that “the judges of this court manipulate and ignore the rules in order to advance political agendas” and that this would “severely undermine public confidence in this court.”  Boggs’ succinct reply was that “Legitimacy protected only by our silence is fleeting.  If any damage has been done to the court, it is the work of the actors, not the reporters.”

Just so.  At a time when the party controlling the U.S. Senate is determined not to allow judges to be confirmed unless they possess the requisite “judicial ideology”—namely, a preference for particular judicial outcomes dictated by that same majority—it is helpful to be reminded that the law is supposed to be objective and not simply the result of power politics.  There is still hope while such men as Judge Boggs remain on the bench.