Owen Fiss' "Groups and the Equal Protection Clause" appeared at a time when the possibilities of progress seemed boundless in overcoming U.S. racial divisions. The courts had firmly taken on the role of social reformers, redistributing status and privilege in the ways so incisively limned by his article. Since then, however, movement towards residential and educational integration has stalled if not actually retreated, a significant black-white wage gap remains, and affirmative action programs in employment and education have become widely disfavored in both judicial and popular opinion. What happened? I argue that the blame for the changing winds lies, partly and ironically, with the very conception of equal protection that Fiss promotes. His essentially remedial understanding of equal protection, according to which courts ought to block state action that perpetuates the subordination of blacks and other disadvantaged groups, and to permit or even require state action undoing the subordination, both presupposes and promotes a politics that replaces political agency with a struggle for spoils before a superior authority. What we need instead, I suggest, is an interpretation of equal protection that can support a reconstructive and enduring democratic politics. I call this understanding the "equal political agency" interpretation, and describe its implications for race-based social policy.
Available at: http://works.bepress.com/christopher_kutz/2/