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).