Merely Judgment

Cover

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Contents

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pp. vii-

List of Tables and Figures

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pp. viii-

Acknowledgments

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pp. ix-xi

This project, which began in earnest more than a decade ago, could not have been accomplished without the assistance and support of many individuals and organizations. Some of the individuals were intimately involved as the work developed, reading, editing, raising questions, challenging me, and encouraging me to pursue new lines ...

Introduction

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pp. 1-28

In 1983, a dispute over a fairly small contract to install fixtures in a city jail began that would end years later by placing the U.S. Supreme Court at the center of the nation’s affirmative action policies.¹ The city of Richmond, Virginia, had passed a law requiring construction firms bidding on government work to subcontract at least 30 percent of the dollars at stake in the contract to minority-owned businesses.

1 Supreme Policymaking

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pp. 29-58

The Supreme Court’s ruling in City of Richmond v. J.A. Croson Co. was neither the Court’s first foray into affirmative action nor its last. In fact, the Supreme Court had ruled just nine years earlier on a federal contracting affirmative action program and would rule six years later on another separate federal contracting affirmative action program.

2 Philadelphia and the Ongoing Dialogue

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pp. 59-75

Philadelphia, it is said, is a city of firsts.¹ Philadelphia had the first American stock exchange, theater, merry-go-round, and daily newspaper. It also had the first stone bridge, paper mill, insurance company, telephone book, and public schools in the colonies. As the city that gave birth to the U.S. Constitution,...

3 Portland and Unsuccessful Court–Elected Branch Interaction

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pp. 76-92

In the 1983 movie War Games, a computer programmed to think and speak runs through several simulations of both tic-tac-toe and the “real- life” game Global Thermonuclear War. Failing to find a winnable pattern to ensure victory, the computer declares, “Strange game. The only way to win is not to play at all.” The City of Portland, Oregon, has similarly learned...

4 Miami and Executive Checkmate

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pp. 93-123

Popular legend holds, probably incorrectly, that President Andrew Jackson, in response to a U.S. Supreme Court ruling that Georgia had improperly taken Cherokee lands, said, “John Marshall has made his decision; now let him enforce it.” As we know today, Supreme Court decisions are not self- enforcing. The case of Miami demonstrates that the Supreme Court can simultaneously change behavior and appear powerless.

5 Beyond Affirmative Action

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pp. 124-154

The varied reactions of the elected branches to the Supreme Court’s decision in City of Richmond v. J.A. Croson Co. in cities across America demonstrated some different techniques for elected branch monopolization of the constitutional dialogue. Faced with judicial solidarity between the Supreme Court and the lower courts, Philadelphia, Portland, and Miami struggled in different ways to maintain an affirmative action contracting program.

Conclusion

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pp. 155-175

In the preceding pages I have explained what can happen after the Supreme Court exercises its power of judicial review, striking down laws as unconstitutional. With all the attention focused on who the Supreme Court justices are, how each justice views the Constitution, and how each justice might vote on the next big case, it is surprising how relatively little attention is paid to the actual consequences of constitutional decision making.

Notes

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pp. 177-205

Index

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pp. 207-220