On August 3, the Supreme Court of the state of California handed down a decision that was widely welcomed by conservatives. In Coral Construction v San Francisco the court found that California’s anti-affirmative-action Proposition 209 was constitutional. Passed at the time of the general election in 1996, ballot initiative 209 amended the state constitution to include a ban on race or sex preferences in "public employment, public education, or public contracting."
The ruling sailed through with a comfortable 6-1 majority, but the lone dissent—by Hispanic justice Carlos Moreno—was unsettling. He wrote that Prop 209 was unconstitutional because it established "a steep hurdle" for non-whites seeking race preferences.
This sounded like special pleading of the most outrageous kind. Why shouldn’t non-whites face "a steep hurdle" if they want to discriminate against whites?
In fact, however, Justice Moreno’s dissent [PDF, P. 35] is a carefully reasoned argument that may actually be right—given the peculiar anti-white premises that are increasingly pervasive in American racial jurisprudence.
Moreno acknowledged that race preferences are controversial. But he pointed out that it was not the court’s job to decide if they were good or bad—only to decide whether the proposition that banned them was constitutional. In deciding that it was not constitutional, he relied on an obscure set of US Supreme Court precedents that have come to be known as the "political structure doctrine." Like the concept of "disparate impact" , it was conjured up out of the Constitution as part of the tortured jurisprudence on race that goes back at least to the Brown decision of 1954.
