Racism and Judicial Activism
President Obama’s nomination of Judge Sonia Sotomayor to become a Justice on the United States Supreme Court has drawn attention to a controversial appellate court ruling of hers in Ricci v DeStefano. In that case, the inherently unjust (self-contradictory) nature of Title VII applications is obvious. Essentially, a racially neutral exam was nullified by the fact that a white majority happened to perform better on it than their minority counterparts. Such coincidences occur naturally over any significant statistical sample. In some cases minorities would happen to perform better—not because of their minority status, but because of the relevant skills they would bring to the exam. In other cases, like this one, the majority would do so for no more than the same reason. Since Title VII demands equality not just of freedom, but of specific opportunities, it unsurprisingly leads to the fear (and likely reality) of lawsuit either way the exam-giver (in this case the City of New Haven, CT) goes. (IOW, to whatever extent irrelevant features—like race—are allowed to be considered, relevant features—like the skills being tested—are necessarily mitigated.) The city nullified the exam for fear of a “normal” discrimination lawsuit. The result of their nullification was a “reverse” discrimination lawsuit. The connection here is that Judge Sotomayor supported the city’s judgment not to accept the exam results, regardless of the fact that there is no just and legal basis for doing so.
Where’s the moral ground? First, it must be understood that in any moral context there are morally irrelevant as well as morally relevant features present. Morally irrelevant features must be excluded from judgments intended to be just. So, for instance, whether a person is wearing a red shirt is irrelevant to whether committing a carjacking was right or wrong.
Interestingly, though, there are non-moral features of moral contexts which are actually morally relevant. For instance, it is neither moral nor immoral to stand in front of someone. But that non-moral feature of a context becomes morally relevant if firing a weapon is part of the moral issue.
Here’s the issue. Race is a non-moral feature of moral contexts. It is neither right nor wrong to be white, black, nor any other (actually rather arbitrary) racial designation. But some courts have determined it to be a morally relevant non-moral feature of those contexts. But they are, as a matter of fact, simply confused. Perhaps the reasoning is that since Fred is discriminated against because he is black, then his race is morally relevant. But that assessment is erroneous. That Fred is discriminated against is immoral. But whether he was discriminated against because he was black or because he was short-haired is morally irrelevant, as irrelevant as whether a victim was beaten to death for $20 or for $20,000.
Now the problem with courts making judgments such as Sotomayor’s in the Ricci v DeStephano case should be obvious. If the goal is to have a society without prejudice—that is, a society where race is neither morally nor practically significant—then race must be both non-moral and morally irrelevant. That it is and ought to be non-moral is obvious. But why must it be morally irrelevant?
If race is a morally relevant (even though non-moral) feature, then it ought to be considered by judges as they, for instance, instantiate or uphold affirmative action. But doing so accomplishes exactly the opposite of what would be most desirable. What would unarguably be most desirable in a just society are laws and practices applied equally to all without regard to race—aka, race being morally irrelevant. But every judgment where that non-moral feature is pronouncedly morally relevant serves to ensconce race in the pantheon of the morally significant (and of course therefore relevant).
So should courts act explicitly to advocate on behalf of race—to act sometimes purely from empathy or compassion in order to ameliorate prior injustices? Only insofar as they desire to continue that injustice and prolong the confusion about what is and is not morally relevant in a just society.
Tags: Justice
