Justice Scalia's Legacy, His Counter-Clerks and Affirmative Action: Why the Court Should Change Course

by Eric Segall

There has been a lot written about Justice Antonin Scalia since his passing a few months ago. He was a larger-than-life figure (even by the standards of Supreme Court Justices), and no one can deny that he was a tireless public servant who devoted much of his career to government service. He was also, of course, one of the most polarizing Justices in our nation’s history.

A number of the Justice’s former law clerks have written remembrances in both law reviews and non-legal publications. Some of these are from “counter-clerks,” so-called because Scalia occasionally hired one law clerk (out of four) per year whose politics fell on the liberal side of the spectrum. The vast majority of these pieces remember Scalia in a favorable light while also painting a realistic picture of the man’s flaws and shortcomings. Professors Ian Samuel and Lawrence Lessig are just two examples of former clerks who went on to become successful liberal lawyers and academics. There appears to be little doubt Justice Scalia treated his former clerks well and encouraged them to argue positions Scalia generally opposed so he could hone and sharpen his opinions. Reading these essays is valuable and provides insight into how Justice Scalia ran his chambers.

There is one aspect of Justice Scalia’s legacy, however, that is perhaps uniquely troubling and relevant to the important affirmative action case (Fisherv. Texas) currently before the Court. Prior to Justice Scalia’s death, the clear consensus among Court watchers was that the Court would reverse the Fifth Circuit' judgment and rule against the university's use of race in admissions. Many people were worried that in doing so the Court would either dramatically cut back on the use of race in university admissions or even prohibit it all together. Normally, we would expect the Court to be deadlocked 4-4 on this issue now that Scalia is gone, but Justice Kagan is recused from the case, giving the conservatives who are already on record as opposed to the use of racial criteria by universities a 4-3 advantage. None of the four conservatives on the Court, including Justice Kennedy, has ever voted to uphold an affirmative action program.

One of Justice Scalia’s counter-clerks, Gil Seinfeld, now a University of Michigan Law Professor, wrote an honest and provocative piece about Scalia called “The Good, the Bad, and the Ugly: Reflections of a Counter-Clerk.” Professor Seinfeld (whom I have never met), clerked for Scalia during the 2002-2003 term when the landmark affirmative action cases Grutter v. Bollinger, and Gratz v. Bollinger were decided. The Court allowed the Michigan law school to use racial preferences (while applying strict scrutiny) but not the undergraduate college, mostly because the former utilized individualized review while the latter allocated automatic points for numerous criteria, including race.

Justice Scalia had previously staked out a strong anti-affirmative action position in several cases on the grounds that the Constitution requires color blindness. But, as Professor Seinfeld points out, by the time of Grutter and Gratz, there was an avalanche of authority arguing that neither the text of the Equal Protection Clause nor its original meaning requires color blindness in governmental programs designed to bring the races together rather than keep them apart. As Seinfeld apparently told Scalia, there is a “robust body of evidence indicating that, in the years following the Civil War and the ratification of the Reconstruction Amendments, Congress routinely enacted measures conferring benefits on blacks as a group.” Conversely, there is scant evidence to support the conclusion that the states and Congress are constitutionally disabled, at all times and in all places, from making relatively limited use of racial criteria to promote a more just society.

Seinfeld delivered this message to Justice Scalia not to convince Scalia to change his mind on affirmative action but to at least push him to respond to these devastating critiques. To Seinfeld’s chagrin, there is not a “syllable” of response to these originalist arguments in Scalia’s opinion in the combined cases. In fact, to the best of my knowledge, Justice Scalia never wrote one word about the original meaning of the Fourteenth Amendment in the context of affirmative action in any opinion he ever wrote.

Seinfeld suggested that perhaps Justice Scalia was so offended by racial preferences that his “instincts about what was right and what was wrong ... overwhelmed him and caused him to discard the principles that he applied honorably in many other contexts (including cases in which those principles commanded results he disfavored)…. And this happened, sometimes, when the stakes were very high.”

 I have argued that Justice Scalia often disregarded originalist principles but that isn’t germane here. The important point is that even a so-called originalist Justice who former “counter-clerks” have suggested was receptive to being challenged, had no interest in positing a response to the overwhelming evidence he was in fact presented with that the Constitution as an original matter did not bar limited racial preferences employed to help traditionally disadvantaged groups succeed in our historically discriminatory society.

There are a couple of academics, Ilya Somin and Michael Rappaport, both of whom I admire and respect, who have tried to respond to the originalist argument that the Court should not apply strict review to affirmative action programs. My view is that all these scholars have shown is that the originalist arguments in favor of racial preferences are not a slam dunk. That’s fine but that conclusion is light years away from Justice Scalia’s view that “five unelected lawyers,” borrowing his phrase from last term’s same-sex marriage decision, should dictate to the rest of the country’s elected leaders (most of them white) that they are not allowed to use limited racial criteria to make our country more equal and more fair for people of all races.

We will never know, unless there is something in Scalia’s papers that tells us and we are alive when the papers are finally released, why Justice Scalia never presented an originalist defense for the judicial invalidation of all affirmative action programs. But, given the importance of the issue, and how often the Court has returned to it, had there been any plausible response, one would think Justice Scalia would have provided it (Justice Thomas has also never written such a defense). Given that failure, unless the Justices simply want to impose their version of right and wrong on the American people, the Court should reverse (but likely won’t) course on its ill-conceived affirmative action jurisprudence and allow colleges and universities to make up for our racist past and strive for more racial diversity and equality in the future.