There seems to be an odd inconsistency among blogging law professors regarding two rather similar recent threats to defy any anti-affirmative action ruling emanating from the Supreme Court. First, Democratic Presidential Candidate Richard Gephardt declared that "We'll do executive orders to overcome any wrong thing the Supreme Court does" with respect to affirmative action. Eugene Volokh calls Gephardt's statement "shocking" and thinks Gephardt "should be taken to task for this, and severely." Fellow law professor Glenn "Instapundit" Reynolds describes the remark as "absolutely pathetic."
Meanwhile, another commentator noted that "[o]ne can reasonably anticipate . . . that colleges and universities will seek to maintain their minority enrollment . . . whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue....[i]f honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises."
What kind of scoundrel would effectively condone Gephardt-style flouting of the Supreme Court's Constitutional rulings--this time by university admissions officers? Turns out the scoundrel in question is Justice Ruth Bader Ginsburg, in her majority opinion in Gratz, one of the affirmative action cases decided today by the Supreme Court. In his dissent, Justice Renquist takes his colleague to task for her apparent preference for "changing the Constitution so that it conforms to the conduct of the universities." Volokh leans towards Renquist's position, but concedes that Ginsburg has a point.
Now, why would Volokh be so much gentler on Ginsburg for saying, in effect, that universities are going to adopt racial preferences regardless of the Supreme Court's ruling, than on Gephardt for saying that as president he would have the government adopt racial preferences regardless of the Supreme Court's ruling? The most charitable explanation I can think of is that he considers sneaky, sub rosa disobedience to the Supreme Court's rulings less objectionable than open defiance of them. But this position is pretty hard to defend as a matter of principle. In fact, Volokh himself, in defending Ginsburg, makes the point that "less transparency in the design of race preferences....may lead to less political accountability."
Moreover, Gephardt's words don't necessarily imply that his undermining of a hypothetical Supreme Court ruling would be particularly brazen. In fact, it's perfectly reasonable to interpret Gephardt as saying that he will sign executive orders which will not explicitly contradict the Supreme Court ruling, but will instead lead, guide and encourage civil servants to promote racial preferences in the same way that Ginsburg imagines universities would--that is, surreptitiously.
I'm left with a disturbing speculation as to the underlying difference between the two cases: university administrations, like the Supreme Court, are appointed, (largely) unaccountable, and undemocratic, and we must therefore bear it stoically should they decide to shrug off Supreme Court rulings. Heaven forbid, though, that an elected, accountable, democratic official--say, the President of the United States--ever utter a peep of resistance to a judicial edict. Such effrontery would threaten the very foundations of non-democracy itself. Why, pretty soon, ordinary citizens would be wondering why they have to submit to the arbitrary authority of the Supreme Court in the first place.