The Tempting of America

by Robert H. Bork

  It shall be an unlawful employment practice for an employer—

  (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

  (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.8

  The statute could not be plainer. What happened to Johnson violated the statute. His employer discriminated against him because of his sex. At the time Title VII was debated, adversaries and doubters expressed the fear that it would allow reverse discrimination, discrimination against whites and males in favor of blacks and females. The proponents of the law, including such leaders in its passage as Senator Hubert Humphrey, emphatically denied that such discrimination would be legal. Those assurances were necessary to the passage of the statute. There could be no better example of a statute that was a bargained contract between persons of differing views. Nor could there be a better illustration of the Court’s willingness to undo that contract and award a victory to one side that it could not win democratically. There could also be no better example of a statute’s deformation that will not be repaired by new legislation. To try to bring Title VII back to its actual meaning would result in a major political war, with the opposition charging hostility to “civil rights,” if not outright sexism and racism.

  It makes little sense, or justice, to sacrifice a white or a male who did not inflict discrimination to advance the interests of a black or a female who did not suffer discrimination. No old injustice is undone, but a new injustice is inflicted. If it is impossible to understand what rational or defensible purpose such a policy serves, it is possible to see the state of society toward which the policy moves us. It is one of quotas for groups, regardless of individual merit. The goal of the plan was to mirror the racial and sexual composition of the entire county labor force in every individual job category at the agency. That balance would never come about naturally. As Justice Scalia, writing for three dissenters, noted, “Quite obviously, the plan did not seek to replicate what a lack of discrimination would produce, but rather imposed racial and sexual tailoring that would, in defiance of normal expectations and laws of probability, give each protected racial and sexual group a governmentally determined ‘proper’ proportion of each job category.”9 That is a radical social policy, one that sacrifices both individuals and the ideal of merit to the new fashion of group entitlements.

  Martin Mayer described the results for civil rights when “the leadership of American society fell into the hands of the intellectual community…. [Nondiscrimination became equal opportunity became affirmative action became goals became quotas became ‘equality of outcomes.’”10 This progression in intellectual and political fashion proved so powerful that a Court majority could be persuaded to hold that a statute means the opposite of what its words say and its proponents promised.

  To say that government may impose quotas does not answer the crucial question: quotas for whom? Johnson attacked the plan because the quota excluded him. Some future plaintiff may choose to attack a government plan under the equal protection clause on the ground that his or her group deserved a quota as much as the favored group and may not be treated differently by government. President Gerald Ford convened a small group at the White House to discuss the problem of affirmative action or quotas in general. One man startled at least some of us by urging quotas for Americans of Slavic descent. He pointed out that various Slavic groups had a lower proportional representation among college students than did blacks. I thought the idea of quotas pernicious to begin with and that it would completely undermine the ideal of merit to extend quotas to yet more groups. But the extension is difficult to resist once you accept the idea of any quotas. If lack of proportional representation is inequitable, it becomes impossible to see why all groups whose proportion in employment, college, or what have you falls below its proportion of the population should not benefit from the principle. Of course, there is the problem that there are an almost endless number of such groups. As Thomas Sowell has reminded us, we tend to talk of “blacks” or “whites,” but in fact there is great ethnic diversity within each of those groups and even within such subgroups as Slavs or Catholics or Jews.11 Government could not single out these groups for less favorable treatment, but of course it does just that when it excludes them from the list of groups that get more favorable treatment. If the lawsuits start coming, the courts are going to have to decide that government cannot give preferences according to sex or ethnicity, or that it can discriminate as it wishes, or the courts themselves will have to decide which groups are entitled to preferential quotas and which not. The latter two options could hardly be more at odds with the promise of the equal protection clause, the 1964 Civil Rights Act, or, indeed, of America. But these choices are where the politics of ultraliberalism seemed to be driving the law.

  That direction is no longer so apparent; at least, a counter-current has become visible. In the spring of 1989, 5-to-4 Court majorities made some moderate, and overdue, adjustments in civil rights doctrine. In Richmond v. J. A. Croson Co.12 the Court this year struck down the city’s minority set-aside program. Richmond required prime contractors who were given city construction contracts to subcontract at least 30 percent of the dollar amount to businesses at least 51 percent owned by U.S. citizens who were “Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts.” It was less than clear why Richmond wanted to extend its quota to minorities from anywhere in the nation, and it requires an effort to imagine the rationale for putting Orientals, Indians, Eskimos, and Aleuts, on the preferred list. So far as one can tell, they had lost very few construction jobs in Richmond because of discrimination. What was clear was that whites were to be discriminated against. The Court found that to be a violation of the equal protection clause. The quota was not an allowable remedy because there was no evidence that the city or anyone in the Richmond construction industry had illegally discriminated against anyone. Justice Sandra Day O’Connor’s opinion is marred only by the argument that the federal government can impose quotas that states and cities may not because the fourteenth amendment gives Congress the power to “enforce” its substantive provisions. The power to enforce, however, is the power to prescribe remedies and sanctions, for violations of equal protection, not the power to change what “equal protection” means. As Justice Anthony Kennedy wrote in concurrence, “The process by which a law that is an equal protection violation when enacted by a State becomes transformed to an equal protection guarantee when enacted by Congress poses a difficult proposition for me….”13 It is, in truth, an impossible proposition.

  In Croson, three members of the Johnson majority, Justices Brennan, Marshall, and Blackmun, dissented vigorously.* Though the legality of racial preferences less bizarre than Richmond’s may not be clear, and though the Court may draw a wavering line in these matters in the future, at least until new appointments alter the Court’s composition, for the time being we may accept George Will’s assessment of Croson: “The Court is gingerly backing out of a swamp.”15

  Shortly after Croson, in Wards Cove Packing Co. v. Atonio, the Court modified the harsh law of statistical racial imbalances it had made in Griggs.16 Statistical imbalances are everywhere in our society since entirely innocent social processes and cultural differences guarantee that there will not be proportional representation of each ethnic group in each occupation. Wards Cove involved Alaskan salmon canneries with predominantly white work forces in skilled jobs and predominantly non-white work forces in unskilled jobs. Intentional discrimination was not at issue, only the consequences of business practices. The court of appeals held that imbalance cre
ated a case against the companies which they could rebut only by proving that the business practices that produced these disparities were essential to their businesses. This version of the law, Justice White wrote in reversing, “at the very least, would mean that any employer who had a segment of his work force that was—for some reason—racially imbalanced, could be haled into court and forced to engage in the expensive and time-consuming task of defending the ‘business neces-sity’ of the methods used to select the other members of his work force.” Thus, the “only practicable option for many employers will be to adopt racial quotas … ; this is a result that Congress expressly rejected in drafting Title VII.”

  The Court held that the proper comparison was between the proportion of a racial group in the work force and the proportion of qualified members of that race in the population available to the employer. Plaintiffs must also identify the employment practices they contend are responsible for the statistical imbalance of the races. When the plaintiff has done that, the employer must come forward with evidence of business justifications for the practices challenged but the ultimate burden of persuading the court that the racial imbalances remain unjustified remains with the plaintiff.

  The outcry of civil rights activists and the liberal press was loud and shrill, as, indeed, had been the dissenting opinions in both Croson and Wards Cove. Ignoring the question of whether the decisions were justified in law, the groups and the press launched a moral assault upon the Court majority. The American left regularly bypasses rational argument to challenge the moral character of those with whom it has substantive differences. The technique is one of intimidation and it has sometimes been at least partially effective with Courts that were sensitive about their image with the press and in public perception. It is important to understand, therefore, that the issue between the Court and its detractors on the left is simply one of quotas and other racial preferences. Most Americans, though thoroughly in favor of civil rights, are opposed to quotas. And they are right on policy as well as legal grounds. When nonwhites who have not suffered discrimination are preferred to whites who have not inflicted discrimination, racial resentments are certain to be inflamed. The problem is likely to grow more acute if preferences are legalized because the question of race and ethnicity is no longer simply a black-white issue.

  The composition of the American population is changing; in some areas it is changing rapidly. We now see competition for group entitlements among whites of European ancestry, blacks, Hispanics, and Asians. That competition quickly becomes bitter, and we now see alarmed articles about the eruption of racist sentiments and expressions on campuses and in workplaces. The only possibility of avoiding still more racial and ethnic antagonism, with largely unforeseeable but certainly unhappy results, is to drop the entire notion of group entitlements. That means an end to racial, ethnic, and sexual quotas. Fortunately, the relevant constitutional and statutory law, properly interpreted, supports that position.

  Judicial Moral Philosophy and the Right of Privacy

  The years of the Burger and Rehnquist Courts also saw the “right of privacy” invented by the Warren Court mature into a judicial power to dictate moral codes of sexual conduct and procreation for the entire nation. The Court majority adopted an extreme individualistic philosophy in these cases, seeming to assert that society, acting through government, had very little legitimate interest in such matters.

  Griswold v. Connecticut17 invalidated a law prohibiting the use of contraceptives on the ground that government must not enter the marital bedroom. That focus, spurious as it was, at least seemed to confine the “right of privacy” to areas of life that all Americans would agree should remain private. But almost at once a Court majority began to alter the new right’s rationale and hence to expand its coverage in unpredictable ways.

  Massachusetts enacted a law regulating the distribution rather than the use of contraceptives. The law provided that married persons could obtain contraceptives to prevent pregnancy on prescription only, and single persons could not obtain contraceptives for the purpose of preventing pregnancy but only to prevent the spread of disease. It was not apparent that the law made much sense, but that is not the same as being unconstitutional. In 1972, in Eisenstadt v. Baird,18 the Supreme Court invalidated the statute under the equal protection clause of the fourteenth amendment and began the transformation of the right of privacy:

  If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

  Griswold did not, of course, deal with distribution of contraceptives but with a prohibition of use. That case, moreover, rested upon a rhetorical appreciation of marriage and the marital bedroom. Now that rhetorical line was dropped because the Massachusetts statute treated married couples and single persons differently, and the Court wanted to strike down the law as to unmarried people. Significantly, the argument of the Court shifted from the sanctity of a basic institution, marriage, to the sanctity of individual desires. The unmarried individual has, as a matter of fact, the freedom to decide whether to bear or beget a child, of course, because he or she has the right to choose whether or not to copulate. But that did not seem enough to the Court, perhaps because copulation should not be burdened either by marital status or by abstinence from its pleasures. There may or may not be something to be said for this as a matter of morality, but there is nothing to be said for it as constitutional law. The Constitution simply does not address the subject.

  Nor after Eisenstadt were we much further along in knowing what it is that the right of privacy does cover. In order to apply the precedent to the next litigant’s claim to be free of a law on the grounds of privacy, one would have to know whether the challenged governmental regulation was “unwarranted,” which is in no way defined by the opinion, and whether the regulation concerned a matter “so fundamentally affecting a person as the decision whether to bear or beget a child.” The opinion gives no guidance for deciding that issue either. It was impossible to tell from Eisenstadt where the right of privacy might strike next. We soon learned.

  The subject of abortion had been fiercely debated in state legislatures for many years. It raises profound moral issues upon which people of good will can and do disagree, depending upon whether they view a fetus as fully human, and therefore not to be killed for anyone’s convenience, or whether they think the fetus less than human so that the desires of the pregnant woman should be paramount. Whatever the proper resolution of the moral debate, a subject which there is no need to address here, few people imagined that the Constitution resolved it. In 1973 a majority of the Supreme Court did imagine just that in Roe v. Wade.19

  In an opinion of just over fifty-one pages, Justice Blackmun, writing for a majority of seven Justices, employed the right of privacy to strike down the abortion laws of most states and to set severe limitations upon the states’ power to regulate the subject at all. From the beginning of the Republic until that day, January 22, 1973, the moral question of what abortions should be lawful had been left entirely to state legislatures. The discovery this late in our history that the question was not one for democratic decision but one of constitutional law was so implausible that it certainly deserved a fifty-one-page explanation. Unfortunately, in the entire opinion there is not one line of explanation, not one sentence that qualifies as legal argument. Nor has the Court in the sixteen years since ever provided the explanation lacking in 1973. It is unlikely that it ever will, because the right t
o abort, whatever one thinks of it, is not to be found in the Constitution.

  The Roe opinion began with a brief recitation of the statute challenged, the appealability of the orders below, and the power of the Court to decide the issue, and then turned to the history of abortion and the interests of the state in regulating the topic through its criminal code. Justice Blackmun canvassed ancient attitudes, including those of the Persian Empire, the Greeks, the Romans, and the “Ephesian, Soranos, often described as the greatest of the ancient gynecologists… .”20 He placed the Hippocratic Oath, which forbids aiding an abortion, in historical context, suggesting that the oath was not at first highly regarded and that its later popularity was due in large measure to the rise of Christianity. The opinion then traced the English common and statutory law as well as the American law on the subject before devoting sections to the positions of the American Medical Association, the American Public Health Association, and the American Bar Association. None of this, it will be noted, is of obvious relevance to the Constitution. Nor was any of this material employed as history that might illuminate the meaning of any provision of the Constitution.

  The Roe opinion next discussed three reasons said to explain the enactment of laws limiting the right to abort: “a Victorian social concern to discourage illicit sexual conduct”;21 concern for the hazards abortion posed for women; and concern for prenatal life. Note that the very concept of sexual conduct that is “illicit” is dismissed with the pejorative “Victorian.” This accurately reflects the Court majority’s allegiance to untrammeled individualism and its position in our cultural wars. And the Court did not decide that the statutes were invalid because obsolete—that, for example, state legislatures had been moved by concern for women’s health that modern medicine had rendered irrelevant. A statute may be enacted for one reason, retained for another, and be none the less constitutional for that. Had that rationale for invalidity been advanced, moreover, states could have responded by reenacting their laws out of an expressed desire to protect the unborn. That was not what the Court had in mind.