In recent decades, the project of integrating long-segregated American society has stalled, if not lurched into reverse. Though the impermissibility of de jure segregation remains well established, de facto segregation has metastasized, in many cases overwhelming gains made during the Civil Rights Era.1 When the Supreme Court closed the door on the interdistrict busing at issue in Milliken v. Bradley,2 Justice Marshall’s dissent began with the mournful prophecy that “[o]ur Nation . . . will be ill served by the Court’s refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together.”3 In far too many cases, Justice Marshall’s warning has been proven true.4
One controversial set of solutions to racial separation and inequity in the United States falls under the heading of affirmative action. Though rarely defined in one sweeping phrase,5 affirmative action is fairly understood as a programmatic effort to increase the representation of traditionally underrepresented groups within a limited set of opportunities — for example, jobs, housing units, or spots in an academic cohort.6
This approach has often been characterized as a kind of reparation — a class-level compensation to traditionally excluded groups to account for those past harms.7 But there are other justifications.8 Perhaps the most notable is the “diversity rationale”: the idea “that individuals and institutions benefit in some way if they represent as many diverse viewpoints as possible, including racial diversity.”9 Thus, “[i]nstead of the presence of blacks or other racial minorities constituting a necessary punishment in expiation of past sins, the diversity rationale makes their presence a positive good.”10
Affirmative action in perhaps its most contentious form uses status as a member of a traditionally underrepresented race as a decisionmaking factor. It has on this ground been interpreted by the Supreme Court as a form of racial discrimination and subjected to strict scrutiny accordingly.11 Operating within that mode of analysis, the Court has struck down integrationist projects undertaken voluntarily by local school districts,12 though it has been slightly more forgiving in the context of higher education.13 Yet recent developments in the executive branch suggest that even previously upheld higher-education programs may now be imperiled.14
In weighing integrationist programs, from primary to higher education, the Supreme Court has often spoken of the Constitution as a document that can support only the most limited integrationist efforts — as a document that values individual rights so much that they can almost never be subordinated to systematic attempts to promote diversity in a given institution.15 This view is often closely linked to the idea that “[o]ur [C]onstitution is color-blind”16 — that it prohibits virtually all racial classifications,17 or at least all but those “necessary to remedy past discrimination.”18 Though others read the Constitution as expressing an “antisubordination principle” — that is, “the conviction that it is wrong for the state to engage in practices that enforce the inferior social status of historically oppressed groups”19 — the general consensus is that the anticlassification principle has predominated “over the past half-century.”20
This Note suggests that something important about the Constitution’s values has gone unsaid in this debate: that the Constitution, in addition to at least opposing identity-based subordination, itself expresses tremendous faith in heterogeneity. So while the Constitution may in general be a “charter of negative rather than positive liberties,”21 in the specific context of integration, there is a separate point to be made about its commitment to systemic diversity and the broad-based blessings that flow from it, especially in light of the relative rarity with which the Court has defended integration as a freestanding good rather than only a reparation for past harms.
This Note proceeds in four Parts. Part I reviews how the Court has characterized the purposes behind race-conscious integration in lower- and higher-education cases. Part II elaborates on the diversity rationale. Part III discusses how the Constitution itself seems to valorize diversity (at least at a high level of generality) by placing bets on heterogeneity through its structure, the First Amendment, and the Sixth Amendment. Part IV concludes by reflecting on why this observation matters.
I. Discussions of Integration in the Education Decisions
There are many reasons to support integration. “Some integrationists are inspired by an ethos of human solidarity,” while “[o]thers urge integration to secure the allegiance (or at least cooperation) of alienated outsiders.”22 “[S]till others . . . fear that if white and colored people are separate, the white majority will discriminate in favor of itself,”23 or that minorities (regardless of active discrimination) will simply remain trapped in a vicious cycle of inequality given the already-unequal distribution of resources and advantages caused by past discrimination.24
Some of these rationales treat integration as a form of redress — a place where two distinct groups’ interests diverge, and one must prevail. As noted above, however, that characterization is not inevitable: there are also arguments for integration that treat it as something that benefits society as a whole, and thus as an aim where interests converge.25
The difference between emphasizing convergence and divergence may be a crucial one. Professor Derrick Bell, for example, famously hypothesized that “[t]he interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites.”26 Though Bell himself was skeptical that salutary use could be made of his thesis,27 there is nevertheless a descriptive case to be made, in light of Bell’s work, that emphasizing convergence rather than divergence is more likely to yield broader public support for integration.28 In keeping with the potential importance of the distinction, this Note will thus distinguish between arguments for integration that identify or emphasize a divergence of interests (divergence-oriented arguments) and arguments for integration that identify or emphasize a convergence of interests (convergence-oriented arguments).
With that framing in mind, which view of integration has the Court propounded? When it comes to primary and secondary education, the Court has tended to emphasize divergence rather than convergence, characterizing integration as a kind of redress rather than as a broad-based, freestanding positive good. The Court has, however, notably departed from this trend in some of its higher-education cases.29 The remainder of this Part briefly reviews how the Court has discussed integration in those two contexts.
The largest and best-known body of law in which the federal courts have grappled with integration is the school desegregation line of cases, beginning with Brown.30 That case itself is a fitting exemplar: the Court did not find much occasion to defend integration as a broad and freestanding good, but instead focused on making clear that “[s]egregation of white and colored children in public schools has a detrimental effect upon the colored children.”31 It thus, with delicately forged unanimity,32 held that segregated schools are “inherently unequal” and a per se “denial of the equal protection of the laws.”33
Brown II,34 the following year, further implied the divergence of group interests, emphasizing the apparent need to “reconcil[e] public and private needs” while still respecting “the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis.”35 In place of an affirmative defense of integration or a mandate that school authorities integrate posthaste, the Court instead launched a line of cases in which it and the lower courts would be responsible for “consider[ing] whether the action of school authorities constitute[d] good faith implementation of the governing constitutional principles.”36 This doctrinal move implied a divergence-oriented view about integration: that it was not societally valuable enough to enforce for its own sake, but rather only to impose as a penalty for bad behavior.37
The cases that followed Brown and Brown II further exemplified this divergence-oriented framing. The Court defended, for example, its own authority in the face of Southern defiance,38 while being careful to state that it was “not unmindful of the deep-rooted problems involved” in integration — the “multifarious local difficulties and variety of obstacles which might arise,” the eminent possibility of “legitimate local problems.”39 Even in its most desegregation-friendly opinions, the Court seemed at pains to treat integration as a kind of logistical headache.40
The first clear convergence-oriented defense of integration came, rather, in dissent. In 1974, when the Court in Milliken v. Bradley41 held that there could be no interdistrict remedies without interdistrict violations and effects,42 the dissenting Justices mourned the decision’s pan-racial downsides in fuller measure than the Court had ever sung its prior opinions’ pan-racial upsides. Justice White observed that without Detroit’s “official policy of segregation,” “neither Negroes nor whites would have suffered from the effects of segregated education, with all its shortcomings.”43 Instead, he wrote, “[t]he education of children of different races in a desegregated environment has unhappily been lost, along with the social, economic, and political advantages which accompany a desegregated school system as compared with an unconstitutionally segregated system.”44
Justice Marshall echoed these themes, writing:
We deal here with the right of all of our children, whatever their race, to an equal start in life and to an equal opportunity to reach their full potential as citizens. Those children who have been denied that right in the past deserve better than to see fences thrown up to deny them that right in the future.45
“In the short run,” Justice Marshall acknowledged, “it may seem to be the easier course to allow our great metropolitan areas to be divided up each into two cities — one white, the other black — but it is a course, I predict, our people will ultimately regret.”46
People did, in fact, regret it. But the Court’s decisions in response to local efforts to integrate primary and secondary schools largely hewed to prior majorities’ divergence-oriented framing.47 Most recently, in 2007, the Court confronted a Seattle school district that had used a system of tiebreakers based on race or ethnicity to fill open slots in schools that were both highly sought-after by students and insufficiently diverse.48 Distinguishing the district’s plan from more “individualized, holistic” efforts that had been blessed in the context of higher education,49 the Court cried foul.50 Race, Chief Justice Roberts wrote for the Court, was not being “considered as part of a broader effort to achieve ‘exposure to widely diverse people, cultures, ideas, and viewpoints,’” but rather as “determinative” on its own.51 And, as he wrote for himself and three other Justices,52 it was being “directed only to” the impermissible goal of “racial balance, pure and simple.”53 The fear that the plurality put forward was that if racial balancing could be treated “as a compelling end in itself, [it] would ‘effectively assur[e] that race will always be relevant in American life.’”54 In other words, as the Chief Justice put it: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”55
The Court has, by contrast, sounded convergence-oriented notes in the context of higher education. In Regents of the University of California v. Bakke,56 identified by some as the “origin” of the “diversity rationale,”57 the Court invalidated the University of California at Davis Medical School’s “special admissions program,” which held spots aside for racial and ethnic minorities, as “a line drawn on the basis of race and ethnic status.”58 But the Court notably upheld treating “race or ethnic background” as a “plus” in admissions programs, so long as the program was “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.”59 In his opinion, Justice Powell emphasized that “[a]cademic freedom . . . long has been viewed as a special concern of the First Amendment,”60 quoting Justice Frankfurter for the idea that “[i]t is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation.”61 This “atmosphere of ‘speculation, experiment and creation’ — so essential to the quality of higher education — is widely believed to be promoted by a diverse student body,” Justice Powell noted.62 “[I]t is not too much to say,” he continued, “that the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.”63 At least insofar as the First Amendment was specially concerned with academic freedom,64 the school had a compelling interest in promoting racial and ethnic heterogeneity.
Twenty-five years later, in Grutter v. Bollinger,65 the Court returned to Justice Powell’s language to uphold the University of Michigan Law School’s “race-conscious” yet “highly individualized, holistic review” program.66 But “[i]n contrast to Powell’s opinion in Bakke,” Dean Robert Post notes, “Grutter does not offer an account of the intrinsic value of the educational process,” but “instead conceives of education as instrumental for the achievement of extrinsic social goods like professionalism, citizenship, or leadership.”67 For example, writing for the Grutter Court, Justice O’Connor stated “that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’”68 She continued:
These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, “[b]ased on [their] decades of experience,” a “highly qualified, racially diverse officer corps . . . is essential to the military’s ability to fulfill its principle [sic] mission to provide national security.”69
These arguments “potentially reach far more widely than do [Justice] Powell’s” in Bakke, because they recognize such a wide array of “social goods” that diversity can “facilitate.”70 Justice O’Connor identified diversity as supporting not only “learning outcomes,” but also success in the workforce, a more competitive economy, and a more effective military.71 In doing so, she gave the Court’s furthest-reaching defense of integration as a broad-based good. This Note now turns to discuss further a central element of that justification.
II. The Diversity Rationale
As noted above, there are many reasons to favor integration. In Bakke and Grutter, the Court sketched out versions of one of the most prominent: the “diversity rationale.”72 This rationale can be understood to emphasize convergence — it suggests that having a plurality of voices at the table will produce better outcomes.73 Those potentially better outcomes are many, including lower bias and greater cultural competence,74 as well as greater communal solidarity.75 Drawing especially on Professor Elizabeth Anderson’s work, this Part focuses on one particular, constitutionally significant broad-based good that heterogeneity serves: fostering better decisionmaking by both individuals and groups. This Part then addresses the dangers of essentializing about a particular group — and why those dangers should counsel caution in implementing, but not abandonment of, integrationist efforts.
Great thinkers have long posited that good judgment requires getting outside of one’s own, parochial perspective. Immanuel Kant argued that it requires “a man of enlarged thought,” one who can “disregard the subjective private conditions of his own judgment . . . and reflect upon it from a universal standpoint (which he can only determine by placing himself at the standpoint of others).”76 John Stuart Mill wrote that it was “hardly possible to overrate the value . . . of placing human beings in contact with persons dissimilar to themselves, and with modes of thought and action unlike those with which they are familiar.”77 Hannah Arendt suggested that it was impossible to think well “in strict isolation or solitude” — we need “the presence of others ‘in whose place’ [to] think, whose perspectives [to] take into consideration.”78 Our ability to judge well, she maintained, “depends on the presence of others.”79
In a democracy, we are all judges in some sense. We serve on juries and school boards, join tenant associations and civic organizations, and participate in town meetings and elections for offices from city councilmember to President. All of these are, Professor Frank Michelman argues, “arenas of potentially transformative dialogue,”80 situated in “historically American” forms of self-organization.81 Through this public action, Michelman argues, it is fair to say “that we are all constantly engaged in ‘constitutional choices.’”82
Heterogeneity is crucial in such settings. Integration yields more informed and accountable decisionmaking, producing benefits that extend from the workplace to the everyday practice of democracy.83 As Anderson argues: “Citizens are . . . epistemically diverse. To understand and solve problems of public interest requires that information held by diverse citizens from different walks of life be brought to the attention of decision makers . . . .”84 One of the achievements of the Civil Rights Movement’s courageous demonstrations, Anderson points out, is that they actively overcame these epistemic barriers for many otherwise somnolent whites — “disrupting the normal routines of citizens so that they sit up and listen.”85 “When,” by contrast, “advantaged groups are able to segregate themselves from the disadvantaged, they . . . become ignorant,” “complacent,” and “insular.”86 Encountering others with different perspectives can be transformative — even, under the right circumstances, for the least sympathetic.87
Anderson provides examples of how integration facilitates the “intergroup communication” necessary for people “to gather and use widely dispersed information about problems and policies of public interest.”88 She points out that studies show that “racially integrated juries take more time to deliberate about their case, and that the quality of their deliberation is superior to that of all-white juries”: “They consider more facts, make fewer inaccurate statements, leave fewer inaccurate statements uncorrected, and more frequently raise questions about ‘missing’ evidence (evidence that would be needed to make the prosecution’s case convincing). They are smarter and more conscientious.”89 In other words, “[s]uperior information exchange in a diverse group causes superior performance.”90 And the same is true “[o]utside of the jury context,” where, for example, “whites who simply anticipate having to discuss a racially charged issue with racially diverse others score more highly on a comprehension test of readings relevant to their discussion than whites who know they will be discussing the issue with whites alone.”91 Likewise, “[e]vidence on how integrated police forces behave” suggests that they are “less likely to engage in police brutality, more likely to know and foster amicable relations with the community, and better able to embody sound race relations than racially homogeneous police.”92
A serious danger, however, lurks in the diversity rationale. Reasoning that members of a certain group may be more likely to bring particular perspectives or experiences to the table, Anderson acknowledges, risks essentializing about that group,93 “potentially prim[ing] stereotypes of blacks as alien and block[ing] recognition of common perspectives and identities.”94 Nevertheless, Anderson argues, the right understanding of these arguments is not as claims that “treat race as a proxy for cultural difference, but as a proxy for personal knowledge of what it is like to live as and be treated as a member of one’s race” — knowledge that “is inherently dependent on possession of specific racial identities,” given that “being treated as a member of one’s race is a necessary and nearly always sufficient condition of having personal, firsthand knowledge of what this is like.”95
This danger of ossifying rather than pulverizing racial stereotypes and prejudices may explain the Court’s hesitance to bless even the best-intentioned racial classifications,96 and its corresponding insistence that remedial “deviation[s] from the norm of equal treatment of all racial and ethnic groups” must be only “temporary . . . measure[s],”97 with a baked-in “logical end point.”98 A solicitude for the individuality of all people is a powerful reason for opposing race-conscious decisionmaking.99
This Note, like Anderson’s argument, does not seek to understate the importance of individual identity, nor does it seek to rely on racial, gender, or other kind of identity essentialism.100 People are far more complex than what any label or cluster of labels could begin to describe. And indeed we might well yearn for a day when knowing what it is like to be a member of a particular race or ethnicity has no discernible value to a decisionmaking process because the experience of being a member of any particular race or ethnicity has become indistinguishable, for purposes of fashioning public policy, from the experience of being a member of any other race or ethnicity. It would make sense for the advent of such a state of affairs to herald the “logical end point” to which the Court has periodically alluded.
But while the importance of individuality justifies caution in how we conceptualize the diversity rationale, there are compelling grounds not to reject race-consciousness altogether at this point. In a 2014 dissent, for example, Justice Sotomayor addressed her colleagues’ faith in “leav[ing] race out of the picture.”101 Highlighting the many policy-relevant ways that race does still “matter,” Justice Sotomayor instead argued for facing up to that “stark reality” and its impact on the lived experiences of people whose differences may be “only skin deep” but whose perspectives and “sense[s] of self” are nevertheless shaped by their experiences.102 Such persistent skews in lived experiences suggest that we ought not to abandon the diversity rationale, even as we ought to exercise caution in its use.
III. The Constitution’s Bets on Heterogeneity
The diversity rationale is especially important for this Note’s purposes because it is bolstered, in a different way, by the Constitution. The Constitution itself expresses the value of heterogeneous groups and institutions through the multiple bets that it places on heterogeneity — “bets” because they reflect a wager that a heterogeneous decisionmaking process will produce a better outcome than a homogeneous one. This Part focuses on three of these constitutional bets, each of which operates at a different level of scale: the Constitution’s structure, the First Amendment, and the Sixth Amendment.
At least three caveats, however, are important. First, this argument makes sense only at a high level of generality. The original text of the Constitution countenanced slavery,103 and it took many years — and the ratification of the Fourteenth Amendment — for it to be understood as barring, for example, jury discrimination104 and school segregation.105 To understand the Constitution as endorsing the kind of heterogeneity that would support race-conscious integrationist programs (alongside more historically protected forms of heterogeneity, like viewpoint diversity106), one would have to translate its values at the time of its and its amendments’ ratifications into their present-day corollaries.107
Second, the Framers clearly did not plan for every decisionmaking organ within this large, federalized republic to be perfectly diverse or heterogeneous. Rather, in many cases, they seem to have envisioned what Dean Heather Gerken has called “second-order diversity” — “variation among decisionmaking bodies, not within them.”108 This approach still reflects faith in heterogeneity, but it does so at one level of remove.109 So it would remain hard to understand the Constitution as expressing the value of diversity in a way that is tantamount to across-the-board racial balancing — a result that, of course, the Supreme Court has emphatically rejected many times.110 But that should not detract from the idea that the Constitution itself still expresses heterogeneity as a core value.
Third, these aspects of the Constitution reflect faith in heterogeneity for purposes of democratic decisionmaking (at various levels of scale), while this Note (alongside much of the Court’s integration-related jurisprudence) has focused on schools, which are not decisionmaking bodies. Schools are, however, “‘a most vital civic institution for the preservation of a democratic system of government,’ and . . . the primary vehicle for transmitting ‘the values on which our society rests.’”111 And if a multiplicity of perspectives is valuable in decisionmaking, having future decisionmakers exposed to a multiplicity of perspectives through education must serve to advance this interest, both by equipping students with more perspectives and by training them to incorporate new perspectives.
At least at a nationwide scale, the Constitution’s structure assumes the value of institutional heterogeneity.112 To preserve liberty and prevent autocracy, it “divide[s]” the administration of government into state and federal governments, and then the federal government into three different branches, each with different jobs.113 And then it subdivides each of those branches further still — into different houses of Congress elected in different ways and at different intervals from districts across the country;114 into principal and inferior officers;115 and into a Supreme Court and (assuming Congress provides for them) lower federal courts.116 The nation, in other words, was set up as a “compound republic.”117
This ramifying institutional power structure reflects the Framers’ focus on balancing “opposite and rival interests.”118 Though different perspectives begot “the mischiefs of faction,” Madison acknowledged, they were also ineradicable features of human society.119 “As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed,” Madison wrote.120 It was government’s “first object” to “protect” these diverse “faculties,” though this achievement would nevertheless entail “a division of the society into different interests and parties”121 that could, if left unmanaged, “kindle their unfriendly passions and excite their most violent conflicts.”122
The solution to the risks attending diversity, however, was not to run from it, but rather to embrace it — to give as many different perspectives as possible a seat at the table. Just as no one could be trusted “to be a judge in his own cause,” so too no “numerous party” should be allowed to dominate.123 Instead, power would have to be divided, and dispute would have to occur at multiple levels — first, to “refine and enlarge the public views, by passing them through the medium of a chosen body of citizens,” and then through decisionmaking among those representatives themselves.124 And by bringing in more voices — by “[e]xtend[ing] the sphere” to “take in a greater variety of parties and interests” — it would become “less probable that a majority of the whole” would be able to oppress the rest.125 The nation would “be broken into so many parts, interests and classes of citizens, that the rights of individuals, or of the minority, w[ould] be in little danger from interested combinations of the majority.”126 In other words, “multiplicity” would protect liberty, with liberty’s hold increasing as “the number of interests” and “the extent of country and number of people comprehended under the same government” increased.127
This idea is not squishy, all-together-now deliberative democracy — rather, it is the kind of tough, adversarial fight among ideas that, in aggregate, might produce the kind of enlarged decisionmaking that Kant, Mill, and Arendt identified as so important.128 The individual voices need not all be agreeable — there is no evidence, after all, that Madison valued the diversity of popular views for its own sake129 — and certainly these voices would not always come to consensus (indeed, that was the point). But having each of these voices in the room — having plurality — was nevertheless essential to preserving liberty and, in turn, self-government.130
Like the horizontal separation of powers, the vertical separation of powers — that is, federalism — also reflects faith in diversity. Each state, as Justice Brandeis famously put it, is empowered to “serve as a laboratory; and try novel social and economic experiments.”131 This plurality of localized governments is thus designed not only to “be more sensitive to the diverse needs of a heterogenous society” and “increase opportunity for citizen involvement in democratic processes,” but also to “allow for more innovation and experimentation in government” and “make government more responsive by putting the States in competition for a mobile citizenry.”132 Fifty small, different governments, in the Framers’ plan, are better than one big one.133
These structural commitments to distributing and balancing power reflect a faith in multiplicity — a belief that when it comes to democratic decisionmaking, no individual view or set of views can be as wise, in the long run, as a kaleidoscope of views. If we take the Constitution’s structure seriously, it is hard to imagine an interest more compelling.
The First Amendment has also been commonly understood as expressing the importance of heterogeneity, at least since the birth of modern First Amendment doctrine. Dissenting in Abrams v. United States,134 a case that saw the Court uphold a conviction against a defendant who had circulated handbills opposing U.S. involvement in the First World War, Justice Holmes criticized punishing “the surreptitious publishing of a silly leaflet by an unknown man.”135 In doing so, he elucidated what has come to be known as the “marketplace of ideas” justification for the First Amendment: “that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”136 “That at any rate,” he continued, “is the theory of our Constitution.”137
Judge Learned Hand, discussing the newspaper industry, identified a similar faith in plurality:
[T]hat industry serves one of the most vital of all general interests: the dissemination of news from as many different sources, and with as many different facets and colors as is possible. That interest is closely akin to, if indeed it is not the same as, the interest protected by the First Amendment; it presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.138
“To many,” Judge Hand conceded, “this is, and always will be, folly; but we have staked upon it our all.”139
The Court has since elaborated that “[t]he protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”140 There is, in other words, a “national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” even if that means we must tolerate, for example, “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”141
This commitment reflects particularly strong faith in heterogeneity; it suggests a constitutional culture that values encountering a diversity of perspectives so highly that it is willing to stomach the odious ones in order to get the rest.142 The Court gave eloquent voice to this comparative evaluation in Tinker v. Des Moines Independent School District,143 in which it held a school district had violated the First Amendment rights of students by suspending them for wearing black armbands to school to protest the Vietnam War. As Justice Fortas wrote:
[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk; and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.144
Plurality, in other words, presents inescapable difficulty, alongside the sharpening force of Judge Hand’s multitude of tongues. But beyond the value of that sharpening force, the First Amendment wagers that such difficulty is not just worth the bargain, but is also a source of the capacity for self-government itself.145
At a more local scale, the jury system also expresses the Constitution’s endorsement of heterogeneity. Though it has evolved substantially over the years, “one thing about the American jury system that has remained relatively constant since its inception is the ideal of a representative jury with dual goals — a jury of peers that is composed of a ‘reasonable cross-section’ of the community.”146 Simply by preferring multiple jurors to one judge, the Amendment endorses plurality — expressing faith in many voices over one, even when the many are lay and the one is expert.147
The Court has emphasized that the Framers instituted this requirement for functionalist reasons — because they trusted a plurality of (private) citizens over the solitary (government-associated) decisionmaking of a “corrupt or overzealous prosecutor” or a “compliant, biased, or eccentric judge.”148 By erecting this “great bulwark of . . . civil and political liberties,”149 the Framers were willing to “impair the most expedient and efficient sentencing” of those accused of even the gravest crimes in favor of a belief in the wiser judgment of a greater number of heads.150 The best way to safeguard liberty was to entrust decisionmaking power to many voices rather than few.
Moreover, the fair cross-section requirement underscores the value of diversity even among these voices. This requirement “does not mean,” the Court has explained, that “every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible.”151 “But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups,” and that people from “every stratum of society” must be treated as competent and eligible for service.152 Thus, while “[d]efendants are not entitled to a jury of any particular composition, . . . the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.”153
Importantly, all that a defendant must show to establish a prima facie fair cross-section claim is that a “‘distinctive’ group in the community” is not fairly or reasonably represented as a result of “systematic exclusion.”154 At that point, it falls to the state to establish that the challenged policy “manifestly and primarily advance[s]” a “significant state interest.”155 What is not required, notably, is a showing of “discriminatory purpose” — the “systematic disproportion itself demonstrates an infringement of the defendant’s interest in a jury chosen from a fair community cross section.”156 This rule illustrates that, even in the Court’s understanding, a reasonably heterogeneous jury pool is a freestanding constitutional guarantee — a broad-based good to be protected for its own sake, rather than a penalty to be meted out in response to a state actor’s particularly bad behavior.157
IV. Conclusion: Why It Matters
That the Constitution endorses heterogeneity may not make a huge difference in terms of cold, hard constitutional doctrine. Though recognizing this endorsement should put a thumb on the scale for understanding diversity (including racial diversity) as a compelling government interest, it is the narrow-tailoring prong of strict scrutiny that has proven the higher hurdle for integrationist programs.158 But we should still care for two reasons: First, because that endorsement can help support convergence-oriented arguments, which may be able to persuade larger coalitions than the divergence-oriented arguments that have been prevalent to date. Second, because even small shifts in doctrinal framing can yield larger changes over a long-enough timeline.
First, as discussed in Part I, one problem with the Court’s divergence-oriented discussion of integration is that it runs afoul of at least the “hopeful upside to Bell’s interest-convergence thesis.”159 If we fear, in keeping with Bell’s argument, that “[t]he interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites,”160 then at least as a matter of pragmatism we may wish to face the unhappy possibility that the Court’s divergence-oriented arguments for integration are unlikely to persuade a large- and diverse-enough coalition to sustain meaningful, integrationist change.161 The Constitution’s bets on heterogeneity, however, provide one more piece of evidence to make a convergence-oriented case. That evidence can help the Court, which in its daily work already lives the values of plurality, do more to remind others “what . . . plurality is ‘for.’”162
Second, we can also understand doctrinal statements, however small, as still exerting a framing influence and having “important anchoring effects on later decisionmaking.”163 On this account, the Court’s leaving a given justification unsaid may have helped hand down to us a doctrine in which race-conscious integrationist efforts appear more suspect than they would otherwise. We can see that mechanism at play in the school desegregation cases themselves: focusing on invidious purpose and defiance in the early days of the doctrine helped shape a line of cases in which integration came to be talked about like a punishment, and courts were either distracted from, or let off the hook from, defending integration for its own sake.164 These framing and anchoring effects may function as merely the lightest of constitutional breezes, insufficient to have changed any individual outcome. But that does not mean that they have not helped shape the law that we currently live with, nor that they cannot yet shape the law to come.