NEW LEFTY TALKING POINT: Civil Rights Laws Are “Undemocratic.”

Would a win for the plaintiffs challenging race-preferential admissions at Harvard and the University of North Carolina be an anti-democratic result — an example of how, as progressive legal commentator Mark Joseph Stern of Slate has put it, “Republicans have outsourced large chunks of their agenda to the federal judiciary and the Supreme Court”?

First, some general legal background: While the Constitution’s structural provisions put in place a democratic system of representative national government, the Bill of Rights ensures that some fundamental individual rights will be protected from overreach by that government. There are some things that are wrong for a majority to do, no matter how democratically it does them. . . .

When it hears these cases next fall, the Supreme Court will exercise its constitutionally granted judicial power to apply the Constitution’s Fourteenth Amendment and relevant anti-discrimination laws. This is hardly a matter of a particular political party outsourcing its agenda to the courts.

Thoughtful legal scholars occasionally have wrung their hands about the counter-majoritarian difficulty — the idea, first advanced by Alexander Bickel, a Yale Law professor, that judicial review of democratically enacted laws is illegitimate because it permits unelected judges to overrule the decisions of elected officials and thus subverts rule by the majority.

Whatever the merits of Bickel’s theory generally, there is no real counter-majoritarian difficulty here. Decades of polling data show that race preferences are consistently unpopular with the public. Referenda to amend state constitutions to ban race preferences in public employment,

public contracting, and public employment have been extremely successful at the polls. By my count, there have been seven examples of these successful state referenda. First, and most famously, California in 1996, but also Arizona, Michigan, Nebraska, Oklahoma, Washington and most recently Pennsylvania. Two other states — Idaho and New Hampshire — have passed similar statutes restricting governmental race preferences.

Efforts to overturn these prohibitions in two deep-blue coastal states — California and Washington — failed. Prop 16, the California initiative, lost the state by 14 points in 2020, a year in which Democrat Joe Biden won the White House by 29 points.

The right thing to do, alas, often isn’t the popular thing to do. But when it comes to upholding the bedrock civil rights principle that individuals should be treated as individuals, and not as representatives of their racial groups, the right answer and the popular answer are the same.

Naturally, it’s not the Lefty Answer.