Article by Kathleen M. Sullivan
Upholding a plan that gave craft-training slots to blacks ahead of more senior whites at a traditionally segregated Louisiana aluminum plant was not a widely popular thing to do in 1977. Nor might it be today. But Judge Wisdom was unafraid to deem such a plan valid in the prescient dissent that became the basis for the Supreme Court's decision in United Steelworkers v. Weber. In that dissent, Judge Wisdom wrote that as long as “the pervasive effects of centuries of societal discrimination still haunt us,” reasonable efforts to undo them should be sustained. He urged judicial restraint especially toward voluntary affirmative action plans such as the one Kaiser and the United Steelworkers had hammered out: “While the government might not be able to require that restorative justice be done, neither should it prevent it.”
It is fitting to look back upon these words in the wake of the Supreme Court's recent decision in City of Richmond v. J.A. Croson Co., which ignored Judge Wisdom's admonition. In Croson, the Court struck down a city's minority business set-aside program as a violation of the equal protection clause. The people of Richmond had attempted to do through politics what Kaiser and the Steelworkers had through bargaining: to accelerate black access to economic opportunities long foreclosed. Yet the city's law met quite a different fate. The reason was not that the centuries of societal discrimination have disappeared. The reason was that a societal backlash has set in against affirmative action. And the Croson decision suggests that the backlash has touched the Supreme Court.
About the Author
Kathleen M. Sullivan. Professor of Law, Harvard University.
Citation
64 Tul. L. Rev. 1609 (1990)