Bakke, Lochner, and Law School: The Nobility Clause Versus a Republican Form of Medicine

Alan Bakke, an unsuccessful medical school applicant, filed suit challenging the constitutionality of the minority admissions program administered by the Medical School of the University of California at Davis. The practice of reserving sixteen special places for minority students out of a total of 100 positions in the entering class, Bakke contended, constituted a denial of the equal protection of the laws guaranteed by the fourteenth amendment to the United States Constitution. Bakke's suit afforded the justices of both the California Supreme Court and the United States Supreme Court a unique opportunity to examine the substantive nature of the "equality" guaranteed by the federal Constitution. Unfortunately, none of the justices accepted the invitation. The justices' failure to analyze the substance of equality is a glaring one, but it is also a failure which can be put to a pedagogical use. The absence of substantive analysis illustrates the inadequacies of our law schools and the unthinking reliance upon black letter rules of law which the legal profession encourages. To a layman, the discussion of "less restrictive alternatives," "benign" racial classifications, and remedial responses to findings of "identified" discrimination must seem curiously unrelated to the crucial questions of justice, equality, and fair representation which should have been the main topics of these opinions. The issue which should have been the focus of discussion in Bakke concerns the clash between the twin ideals of meritocracy and republicanism. It is not the purpose of this article to suggest how this conflict between meritocracy and republicanism should have been resolved in the Bakke case. Instead, this article focuses on the reasons why the California and United States Supreme Court justices declined to identify and discuss the underlying issues in the case. Bakke is merely one decision. But the judicial evasion of central issues of constitutional law is a recurring phenomenon. This article seeks to explain why this disturbing phenomenon is so common. It is suggested that these judicial evasions can be attributed to the legal profession's practice of masking the human realities of legal conflicts with the use of camouflaging terminology and black letter formulas for case dispositions. The failure to confront the substantive nature of equality can be attributed to our law schools' failure to train jurists to heed the emotional responses of the heart.