[T]he possibilities for creative interpretation in American law are such that every American lawyer carries new law in his pen.
But the job of courts in a pluralistic democracy isn't to please their base. It's to work to resolve conflicts, to ratchet them down rather than up. Courts should be reminding us of what we have in common. They should be granting just enough constitutional leverage on each side that we have no choice but to sit across from each other at the table, to look each other in the eye, and to speak to and hear each other. Too often, U.S. courts instead see their job in constitutional cases as declaring who's right. The answer, so often, is neither side -- or both.
The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest. And now in that spirit, that spirit of an America which has never been, and which may never be; nay, which never will be except as the conscience and courage of Americans create it; yet in the spirit of that America which lies hidden in some form in the aspirations of us all; in the spirit of that America for which our young men are at this moment fighting and dying; in that spirit of liberty and of America I ask you to rise and with me pledge our faith in the glorious destiny of our beloved country.
Obviously, I too believe in a colorblind society; but it has been and remains an aspiration. It is a goal toward which our society has progressed uncertainly, bearing as it does the enormous burden of incalculable injuries inflicted by race prejudice and other bigotry, which the law once sanctioned, and even encouraged. Not having attained our goal, we must face the simple fact that there are groups in every community, which are daily paying the cost of the history of American injustice. The argument against affirmative action is but an argument in favor of leaving that cost to lie where it falls. Our fundamental sense of fairness, particularly as it is embodied in the guarantee of equal protection under the la, requires us to make an effort to see that those costs are shared equitably while we continue to work for the eradication of the consequences of discrimination. Otherwise, we must admit to ourselves that so long as the lingering effects of inequality are with us, the burden will be borne by those who are least able to pay.