The Supreme Court and Race

This essay from Harvard law professor Michael Klarman got a lot of attention last week. An excerpt:

The conservative justices’ hostility to affirmative action reflects a constitutional double standard. These are the same justices who ordinarily—for example, in cases involving abortion, gay rights, or physician-assisted suicide—profess commitments to judicial restraint, democratic decision making, respect for states rights, and an interpretive methodology of textualism and originalism. Yet, all of these considerations point in the direction of permitting race-based affirmative action. To strike down affirmative action programs is for unelected judges to invalidate the policy preferences of state and local governments on a thin constitutional basis. The text of the Fourteenth Amendment says nothing about government color-blindness—indeed, Section One doesn’t even mention race—and the original understanding of those who adopted and ratified the amendment was plainly not a mandate of color-blindness. The Framers of the Fourteenth Amendment (and their constituents) were too racist to require government to eschew all racial classifications. They thought that laws disenfranchising blacks, excluding them from jury service, segregating them in schools, and forbidding interracial marriage would plainly be permitted under the new amendment.