Strengthening Constitutional Self-Government

No Left Turns

On the 25 Years Standard: Bakke Revisited

The majority in Grutter makes the strange statement that they believe that affirmative action will not be necessary, and will not comport with the requirements of the Equal Protection Clause, in say, 25 years (slip-op at 31). This is quite interesting, because it harkens back to a story I heard from a clerk for Justice White, relating how the Bakke bargain was struck. Justice Powell, the swing vote "1" in the 4-1-4 opinion which was Bakke, is reported to have changed his vote several times. He was discussing this with two of the more vocal proponents on the court: Justice Marshall, who sought to uphold affirmative action, and another Justice who believed it unconstitutional. At one point, Powell asked how long affirmative action should last. Marshall reportedly said something to the effect of "Well, this country kept us in slavery and oppression for 400 years; 400 years ought to do." Powell then abandoned for good Marshall’s position, thus creating the strange hybrid beast that was Bakke. It is interesting then that the idea of a "sunset" provision--the very issue that troubled Justice Powell in Bakke--made its way into the court’s opinion.

Justice Thomas makes short work of this, however, stating "I believe that the Law School’s current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months." That’s worth at least two cups.  

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