African-Americans include descendants of African slaves, recent voluntary immigrants from Africa--and from the Caribbean. The single category ``Hispanic" sweeps together such very different groups as Cuban-Americans, Haitian-Americans, Guatemalan-Americans, Salvadoran-Americans, Mexican-Americans. And immigrants from Argentina--but not from Brazil.
Rapidly rising rates of intermarriage further the wholesome blurring of the picture of the nation. So does the fact that many Hispanics--and Arab-Americans--chose ``white" or ``other" when asked to pick from among the 63 categories on the 2000 census form.
The increasing arbitrariness and unreality of official racial and ethnic categories will become apparent. After all, 100 years ago, Irish, Italian and Jewish immigrants were considered three different races.
Justice Clarence Thomas, who considers both Michigan programs unconstitutional denials of equal protection, quoted an 1865 Frederick Douglass address: ``The American people have always been anxious to know what they shall do with us. ... Do nothing with us! Your doing with us has already played the mischief with us. ... All I ask is, give (the negro) a chance to stand on his own legs. Let him alone!"
Perhaps policy will conform to Douglass' vision in another 138 years. Justice O'Connor, writing 25 years after Bakke, says: ``We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.'' Would constitutional law now be different if the court's expectation were less cheerful? Because the interest at issue--diversity--is so unexamined and unexplained, the supposed necessity of preferences is as speculative as is the expectation.
Future cases probably will require the court to split and re-split hairs about what the Constitution supposedly says concerning how much weight race can be given by institutions as they engineer ``diversity" to produce asserted, but unmeasureable, benefits. But the future cases will reveal a court increasingly mired in criteria and categories rooted in a vanished America's problems with a binary, black-and-white understanding of its racial composition.
In time, the court's role will seem anachronistic; its reasoning and vocabulary will seem quaint. Demographics, not constitutional litigation, are determining the destiny of a post-racial America.