The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Saturday will be graduation day at UC Davis Law School (as well as many other law schools). Congratulations to all the graduates!
I don't know who the Davis graduation speaker will be this year, but forty years ago, it was Justice Stanley Mosk of the California Supreme Court. This raised a hullaballoo. Although students had voted Mosk one of their preferred speakers back in the autumn, he was Public Enemy No. 1 to some students. Calling themselves the "Third World Coalition," a group of them demanded him to withdraw.
What crime had he committed to cause this left-of-center student outrage? Up until recently, Mosk had been considered one of the most liberal judges on any state supreme court in the country. His credentials as a civil rights activist were impeccable. In his personal life, he had quit fraternal organizations like the Elks and the Eagles to protest their refusal to admit blacks as members. As Attorney General of California, he had banned the Professional Golfers Association, which banned African-American players, from using state golf courses. As a judge, he had outlawed restrictive racial covenants (before the U.S. Supreme Court did so in Shelley v. Kraemer).
But Mosk had the audacity to take his commitment to equality seriously. He had been fighting for decades for equal treatment, and he was not able to turn around on a dime and approve the preferential treatment based on race practiced by colleges and universities in the name of "affirmative action." When the case of Bakke v. University of California Regents reached the California Supreme Court he wrote an extremely eloquent opinion for the majority condemning the UC-Davis Medical School's race-preferential admissions policy as unconstitutional. Read the whole opinion if you get a chance. Here is a taste:
To uphold the University would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality.
I liked the language so much, I used it in the title to an article of mine: A "Dubious Expediency": How Race-Preferential Admissions Policies on Campus Hurt Minority Students. In this blog post, I repeat a little on what I wrote in that article.
It's unlikely Mosk was prepared for the onslaught that followed his opinion striking down Davis's affirmative action plan. The protests continued to build till the U.S. Supreme Court decided the case in June of 1978. Hundreds of placard-carrying demonstrators gathered beneath his office window to denounce his decision and demand its reversal. Thousands rallied elsewhere. When visiting local campuses, Mosk would routinely find himself greeted by picketers and hecklers.
At the Davis Commencement, about 50 to 75 picketers—mostly students, but also some from outside groups–greeted those who entered the building. When Mosk was introduced at the ceremony, about 34 of the 139 graduates, along with about 150 guests, walked out. But Mosk was undaunted. "Judges," he told the crowd, "cannot be intimidated," and "Lawsuits are won and lost in the courtrooms, not in the streets."
Mosk was never forgiven for this (and a couple of other) deviations from liberal orthodoxy, not even in death. In his 2001 New York Times obituary, he was accused of having a knack for anticipating and bending with political currents. In fact (for good or ill), Mosk had backbone rarely found in judges.
Weirdly, it is U.S. Supreme Court Justice Lewis Powell, a mild-mannered Nixon appointee, who ended up being beloved by the Left. Powell's fence-sitting opinion in Bakke effectively overturned Mosk's opinion and opened the door to ever-greater preferential treatment based on race. It was Powell, not Mosk who took the easy route: Bend with the political currents.
Unlike the irascible Mosk, the gentlemanly and accommodating Powell was an unlikely civil rights hero. A chairman of the Richmond School Board between 1953 and 1961 and a member of the Virginia Board of Education—the crucial years following the Supreme Court's decision in Brown v. Board of Education (1954)—Powell was in a position to take a leading role in dismantling Jim Crow. But Powell, who later went on to be president of the American Bar Association, did not distinguish himself as an advocate of desegregation "with all deliberate speed." As Jerome Karabel in The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton put it:
His own carefully worded assessment of his service in these positions was that it had taken place when the pace of desegregation had been "necessarily more measured than civil rights leaders would have liked." But this was a rather generous interpretation of his role in the years after the Brown decision, for when Powell stepped down as chairman of the Richmond School Board in 1961, after eight years of service, only 2 of the city's 23,000 black children attended school with white children. And during his two terms with the state Board of Education, Powell's sympathetic but fair-minded biographer reports that "he never did any more than was necessary to facilitate desegregation …[and] never spoke out against foot dragging and gradualism."
I mean no disrespect to Lewis Powell, who I believe was on balance a good jurist. But when the right thing to do was stand on principle in the face of demands for expedience, Stanley Mosk was the one to call on, not Powell. Powell's reputation as a serious supporter of civil rights is undeserved. A former ABA president, he could be described as a conciliator, or he could be described as a man who was disinclined to rock the boat. Both were accurate; the two description of Powell's temperament are one and the same. Whether it is a virtue or vice depends on the situation.
Given the mounting evidence that race-preferences make minority students less likely to succeed, Mosk's use of the term "dubious expediency" seems prescient.