Strengthening Constitutional Self-Government

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On a Gratz and a Grutter, Baby!

Re: Hayward’s Supreme Court challenge, I’m told NPR will air a panel discussion of the Grutter and Gratz cases on affirmative action next Tuesday. So, with the Supreme Court likely to announce their decision in those cases on Monday, what do I think the Court will say? My opinion has not changed much since I blogged on the subject last December (see my blog entitled "Sandra Day’s Swan Song").

In short, I still think O’Connor will write the decision for the court majority, 5-4, but will not garner a majority for her opinion, i.e., the reason for her decision to strike down Michigan’s racial preference programs at the state’s flagship law school and university. Rehnquist, Kennedy, Thomas, and Scalia will agree with her conclusion that Michigan’s programs fail the Court’s well-established strict scrutiny test. I’m guessing that O’Connor will try to improve upon (while reinforcing, unfortunately) the 1978 Bakke precedent by emphasizing the "narrowly tailored" prong of the two-part test, leaving aside the "compelling state interest" prong for a future Court to deal with.

O’Connor has explicitly cited the part of Powell’s lone opinion in Bakke that supported racial diversity in higher education as a compelling state interest. Here’s what she wrote in the Wygant case:

Additionally, although its precise contours are uncertain, a state interest in the promotion of racial diversity has been found sufficiently "compelling," at least in the context of higher education, to support the use of racial considerations in furthering that interest.

However, Rehnquist, Thomas, and Scalia won’t buy that rationale. So O’Connor will maintain her court majority of five by finding that Michigan programs are also not narrowly tailored enough because they act as de facto quotas (thus violating Bakke in spirit if not in letter) as well as lacking a defined terminating point to indicate the achievement of "enough" diversity that would call for the end of affirmative action by the state university.

I would emphasize this last point, given her concern (and Scalia’s) at oral argument that affirmative action be limited in scope and duration. For example, in a June 1 NY Times Magazine essay "How I Learned to Love Quotas", Jeffrey Rosen noted O’Connor’s shock to hear a Supreme Court justice from India say that their caste-based quota system would never end: "O’Connor raised her eyebrow in response and gave me a meaningful glance of reproach."

Thus, O’Connor’s majority co-signers will agree with some of her arguments, ignore others, and weigh in with their own--as they have done in previous affirmative action cases. Alas, Powell’s lone opinion in Bakke will still continue to stand as the precedent in affirmative action cases involving higher education.

The danger for O’Connor is the risk of having her opinion become another repeat of Powell’s, with four members of the Court (Stevens, Souter, Ginsberg, and Breyer) joining one of her arugments (racial diversity IS a compelling state interest), while four other members (Rehnquist, Scalia, Kennedy, and Thomas) side with another argument (racial diversity as a rationale for affirmative action is NOT narrowly tailored enough). The question is, will O’Connor be prudent enough during the opinion-circulation stage to remove any reference to a compelling state interest argument (for racial diversity) to focus on the narrowly tailored argument (against racial diversity) to strike down Michigan’s affirmative action? One hopes she will stick with the narrowly tailored test, if only to give the nation a chance to rid itself of affirmative action in the near future.

As I noted in my previous blog, O’Connor may try to turn this case into a swan song for her general legacy as the first female Supreme: namely, 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. This means Bakke and strict scrutiny are here to stay, even if Michigan’s current affirmative action regime dies next Monday.

Will O’Connor retire soon after this term? I think it’s likely. She’s published two books in the last year or so with nostalgic themes, has had family and friends attend oral arguments this term like there’s no tomorrow, and clearly wants to enjoy her retirement back West and away from the Beltway. I wouldn’t be surprised if Stevens (age 83) followed O’Connor’s lead and jumped ship before the Oct 2003 term. But my prediction is O’Connor will not retire if she was unable to corral (cowgirl that she is) a majority to join her on Grutter and Gratz. Rehnquist, however, is good for another year, at least.

Whew! My final recommendation is to read a sensible op-ed on this whole affirmative action mess by Robert Samuelson from Wednesday’s WA Post: "Affirmative Ambiguity". He notes, "Minority students have been academic trophies" for elite colleges, who exclaim that the world will come to an end if an affirmative-action-less academy leads most minorities to attend less prestigious colleges and universties. Looking for a silver lining to the cloud of affirmative action, Samuelson lauds what he calls the "more open society" produced by forced racial integration of schools. While he does not give due attention to the kind of state control that must be ceded by free citizens in order to engineer his "open society," Samuelson at least highlights the specious "moral superiority" of elite colleges who defend affirmative action.

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