ABSTRACT
When judges make the same kinds of judgments that legislators or executive branch officials do, the extralegal nature of the judgment is usually obscured by the formality and apparent precision of doctrinal language. Even when constitutional doctrines make no implicit claim for precision and accuracy, they are combined in such systematic ways that the impression created is juridical rather than political. Diversity in higher education, then, serves not only specific educational purposes but also some of the same political purposes that the Supreme Court has on occasion claimed for its own work. Diversity, like certain constitutional decisions of the Court, is thought to stand as a bulwark against illegitimacy and the fragmentation, or, put more affirmatively, as an embodiment of people's aspirations for a just society. Ronald Dworkin's sympathetic account of Patrick Devlin's argument does not mean that he accepts Devlin's conclusions.
