Strengthening Constitutional Self-Government

No Left Turns

O’Connor’s Failure of Nerve

Well, a quick perusal of O’Connor’s opinion for the court indicates she--a cowgirl, for crying out loud--failed to pull the trigger on affirmative action precisely on the point that she raised at oral argument and elsewhere: namely, that govt use of race be limited in duration (to satisfy the "narrowly tailored" prong of the strict scrutiny test). What evidence does she cite to prove that the law school intends to use race for a limited time? In breathless prose she states,

We take the Law School at its word that it would "like nothing better than to find a race-neutral admissions formula" and will terminate its race-conscious admissions program as soon as practicable.

Is that all it takes to pass constitutional muster? Taking a govt institution "at its word" that it will stop using race when IT deems it no longer necessary?! O’Connor goes on to close that paragraph as follows:

We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

What about the rights of individuals today? Is it not the Court’s responsibility to ensure that govt institutions not violate the Constitution today, per standards the Court derives from the Constitution, and not accept the mere verbal testimony of the institution using race-conscious measures? It appears that O’Connor has felt the pressure of elite public opinion not to hasten the day when all Americans are treated equal under the law but rather find the extent of their constitutional protections determined by their specific race.

Quick additional point: O’Connor also upholds Powell’s lone opinion in Bakke that racial diversity is a compelling state interest in higher education--this despite her pointing out that no other justice joined that part of his opinion! In short, by drawing the support of the four liberal justices for her majority opinion in Grutter, O’Connor has now turned Powell’s one-man, slender-as-a-reed endorsement of race as part of educational diversity (to satisfy compelling state interest) into a slim but solid 5-4 Court precedent for diversity as a rationale for race-conscious govt decision-making. Does O’Connor realize how much she has crippled the Court’s ability to speed the day that affirmative action fall by the wayside of public practice?

I’ll chime in with more once I give all the opinions a closer look, esp. the separate opinion of Thomas in Grutter and the Rehnquist majority opinion in Gratz, which overturned affirmative action at the undergraduate level (and which O’Connor joined).

Discussions - 1 Comment

An interesting take from paleoconservative Paul Gottfried, from ConservativeNet:

"Contrary to the views of my moderate conservative colleagues, I for one am delighted that the Oracular Court and the High Priestess ruled as they did. It is exactly what the American people, if that is what they still are, deserve. Justice O’Connor rendered a decision that should please a majority of the American electorate, which, according to all the national polls I’ve seen, believe that the government should be helping us to achieve more "diversity" in the workplace and
in universities. Let’s not beat up on our fellow-academics, who are no
more disgusting than our next door neighbors. The fact is the Court is
giving us what American whites pretend they love. They deserve to choke in it, until quotas become as much of a wedge issue as prescription drugs and other apparent government give-always. One
cannot stress sufficiently the democratic nature of what the Court has
done. It has truly endorsed the expressed will of the majority, which
even the Republican President Bush has tried not to offend. Thus in
his campaign Bush spoke about "affirmative access" and more recently, has emphasized the possibility of maintaining high levels of minority enrollment in universities by disguising quotas as something else.
Although I found such approaches to be odious, I suspect Bush understands American political culture all too well."

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