Of course, the answer is no, but that is precisely what the Southern District of New York did in Blessing v. Sirius XM Radio. PLF filed a brief today arguing that the federal courts are just as bound by equal protection as is Congress and the President.
The case concerns the merger of the two satellite radio giants. Plaintiffs filed suit against the merger claiming that it violated federal antitrust law. PLF’s interest in the case does not involve the legality of the merger, but rather what the court did next. When the court certified the class, it also required that attorneys representing the plaintiff class “fairly reflect the class composition in terms of relevant race and gender metrics.” In other words, the court required that the attorneys representing the plaintiffs must be balanced according to race- and sex-conscious criteria.
In its brief, PLF points out that race-based classifications are only constitutional when they are the least restrictive means of furthering a compelling governmental interest. Because the court had no compelling basis upon which to racially balance the attorneys, the race-conscious mandate is clearly unconstitutional.
PLF’s brief went further, however, and argued that the lower court’s actions are particularly pernicious. Here’s a snippet:
“Under the lower court’s mandate that attorneys follow ‘race and gender metrics,’ individuals within these groups are necessarily treated as the embodiment of their racial group identities. Implicit in the court’s racial balancing mandate is that only black attorneys can adequately represent black plaintiffs and only white attorneys can adequately represent white plaintiffs. Such blatant stereotyping is inherently pernicious and unjustifiable.”
I will post PLF’s brief once it becomes available.