Strengthening Constitutional Self-Government

No Left Turns

Sandra Day’s Swan Song

Regarding foreseeable Supreme Court vacancies, look for Associate Justice O’Connor to make the Grutter and Gratz affirmative action cases her swan song.

There’s no way the present Court can muster a Brown v. Board-style unanimous decision or opinion in an attempt to cut the Gordian knot of 21st-century affirmative action. Prediction: O’Connor (who wrote the Adarand and Richmond v. Croson opinions, which were majority decisions but neither of which garnered a majority in support of her opinion) will again write for the Court. She’s unlikely to write an opinion that gets four other votes, given Scalia’s and Thomas’s consistent concurrences, to say nothing about the complexity of the lower court rulings. In Adarand, she laid out pretty neatly a summation, "three general propositions," of court precedent on affirmative action, which neither she nor the other conservative judges have shown signs they will back away from.

It helps that O’Connor acknowledged (in Croson) that Bakke did not produce a majority opinion, which means she will try to do just that with this case. It’s been almost a quarter century since the Supremes ruled on affirmative action in education, so O’Connor will try to improve upon Powell’s lone opinion (but majority decision) in Bakke by getting the Court to speak more clearly: namely, by emphasizing stare decisis as applied to the Court’s racial discrimination decisions. She may try to turn this case, if she gets to write the opinion, into a swan song for her general legacy as the first female Supreme--helping the Court to stabilize its rulings, esp. given its split decisions on controversial subjects, through a heightened reinforcement of the role of precedent. This is how she interpreted the abortion cases and was able to steal the Casey opinion away from Rehnquist.

In short, strict scrutiny lives to fight another quarter century.

Quick note on Stevens: In 1999 or 2000, during the one oral argument session I have witnessed before the Supremes, Justice Stevens was the most engaged and vigorous of the nine inquisitors.

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