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Affirmative Action
"I can call Spirits from the vasty Deep."
KING HENRY THE FOURTH
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Johnson
v.
Transportation Agency
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Affirmative Action
Justice Scalia Dissent
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March 25, 1987
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Excerpt:
The most significant proposition of law established by today's decision
is that racial or sexual discrimination is permitted under Title VII
when it is intended to overcome the effect, not of the employer's own
discrimination, but of societal attitudes that have limited the entry
of certain races, or of a particular sex, into certain jobs.
... In fact, however, today's decision goes well beyond merely allowing
racial or sexual discrimination in order to eliminate the effects of
prior societal discrimination. The majority opinion often uses the
phrase "traditionally segregated job category" to describe the evil
against which the plan is legitimately (according to the majority)
directed.
... The majority emphasizes, as though it is meaningful, that "No persons are automatically excluded from consideration; all are able to have their qualifications weighed against those of other applicants." Ibid. One is reminded of the exchange from Shakespeare's KING HENRY THE FOURTH, Part I:
GLENDOWER: I can call Spirits from the vasty Deep.
HOTSPUR: Why, so can I, or so can any man. But will they come when you do call for them?
[Appellant] Johnson was indeed entitled to have his qualifications weighed against those of other applicants — but more to the point, he was virtually assured that, after the weighing, if there was any minimally qualified applicant from one of the favored groups, he would be rejected.
Text Excerpt:
THE FIRST PART OF KING HENRY THE FOURTH, William Shakespeare
Glendower: I can call spirits from the vasty deep.
Hotspur: Why, so can I, or so can any man; But will they come when you do call for them?
Glendower: Why, I can teach you, cousin, to command the Devil.
Hotspur: And I can teach thee, coz, to shame the Devil
By telling truth: tell truth, and shame the Devil.
If thou have power to raise him, bring him hither,
And I'll be sworn I've power to shame him hence.
O, while you live, tell truth, and shame the Devil!
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