Super Deference, the Science Obsession, and Judicial Review as Translation of Agency Science
This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions. The Article seeks to map out a better response to changed conditions than the all-or-nothing options that presently define the debate. It argues that longstanding remedies should neither be terminated nor continued indefinitely, but instead should be adapted to better address changed circumstances. Specifically, the Article calls for a shift in remedial focus away from the effects of past discrimination to the local institutions that must deal with those effects most directly. It calls on courts, legislators, and voters to adapt remedies so that they provide institutions of local governance with the skills and resources needed to operate fairly in an environment inexorably shaped by past discrimination and in which some effects endure.