A People's History of the Supreme Court

by Peter Irons

  With the clock ticking toward the congressional deadline for certifying state electoral votes, Bush’s lawyers filed an “emergency” appeal with the Supreme Court, seeking an order to end the recounts. The justices had rarely before agreed, on such short notice, to decide a case involving more complicated issues of state and federal law, or a case with such momentous political consequences. Boiled down, the justices faced two questions: first, whether the Florida Supreme Court could extend the certification deadline set by Congress, before its members met in joint session to count the electoral votes from each state; and second, if it could, would it violate the Constitution’s Equal Protection clause if recounts continued and county officials used differing standards in deciding whether disputed ballots should be counted.

  When the Court issued its decision on December 12, 2000, seven justices joined an unsigned, “per curiam” opinion, holding that “there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy,” basing their ruling on equal protection grounds. Of these seven justices, however, only a bare majority of five agreed that the only remedy available was to end all recounts and let Secretary Harris’s certification of Bush’s victory in Florida stand. Justices Souter and Breyer, who joined the per curiam opinion, also wrote dissents, arguing that any “constitutional problems” could be remedied by allowing recounts to continue, with guidance by Florida judges to county officials on proper standards for discerning the “intent” of voters in marking their ballots. It was rare for justices to dissent from opinions they had joined, and it was difficult to understand why Souter and Breyer had taken such seemingly contradictory positions. But it was equally difficult to understand why Chief Justice Rehnquist, joined by Justices Scalia and Thomas, had embraced the Equal Protection clause in the per curiam opinion, since all three normally construed it narrowly or denied its applicability in civil rights cases. Bush v. Gore, however, was not a normal case, but one that raised, as Justice Breyer wrote, questions with “momentous” political implications.

  Two justices, Ruth Bader Ginsburg and John Paul Stevens, wrote dissents that rejected the majority’s equal protection argument. Stevens noted that if recounts continued, “a single impartial magistrate” would decide whether county officials had correctly discerned the intent of individual voters. On her part, Ginsburg faulted the five-justice majority that ended the recounts for not practicing what it preached in most cases, in which conservative justices showed “deference” to state judges in construing their own state’s laws. Ginsburg pointedly cited earlier cases in which her conservative colleagues had given “great weight to the views of the State’s highest court.”

  Within hours of the Court’s decision, Vice President Gore conceded the presidency to Governor Bush, although many Democrats charged that political factors had influenced the outcome, noting that all five justices who voted to end the Florida recounts had been named by Republican presidents. Four of the five, in fact, had served in GOP administrations, and the fifth, Justice O’Connor, had been elected to state office as a Republican. However, Justices Stevens and Souter, who dissented from this ruling, had also been nominated by Republicans, although their judicial opinions in abortion and civil rights cases had displeased GOP activists. On a more substantive level, Democrats charged that Republican officials in Florida had illegally purged many eligible voters—largely in heavily Democratic counties—from the state’s electoral rolls, and had closed polling places in largely African American precincts while hundreds of voters still waited in line to cast their ballots. Such charges have prompted bipartisan congressional measures to enact federal electoral laws that would prohibit “punch-card” ballots and impose uniform voter-registration procedures on the states.

  During Bill Clinton’s eight-year tenure in the Oval Office he made clear his administration’s commitment to affirmative action programs to increase the numbers of racial and ethnic minorities, as well as women, in the nation’s colleges and universities. Substantial majorities of African Americans, Hispanics, and women had voted for Clinton, and these same groups supported Vice President Gore’s campaign to succeed Clinton. George W. Bush owed his narrow Electoral College victory over Gore to another powerful voting bloc, white males, who backed Bush by a 60 percent margin.

  Affirmative action had not been a major issue in the 2000 presidential election, and Bush proclaimed his support for “voluntary” efforts to increase minority representation in higher education. But he also opposed “quota” systems to achieve this goal, a position the Supreme Court had taken in the landmark Bakke case in 1978, which stemmed from the “white male backlash” against policies that established separate admissions systems for members of racial and ethnic minorities. In that case, as we saw in Chapter 34, a narrow five-to-four Supreme Court majority had struck down a program under which the University of California medical school at Davis had set aside sixteen places out of one hundred in its entering classes for applicants in such “disadvantaged” minorities. Justice Lewis Powell had provided the swing vote on the sharply divided Court in the Bakke case, writing two separate opinions that were joined by two different groups of justices. Four of his more conservative colleagues joined Powell in striking down the medical school’s “special admissions program” for minority applicants, whose undergraduate grades and scores on the Medical School Admissions Test were generally lower than those of white applicants. However, four of the Court’s more liberal members agreed with Powell that colleges and professional schools could establish programs that considered race and ethnicity as “plus” factors in admissions programs that were based on “individualized” consideration of each applicant’s qualifications.

  The Bakke decision raised more questions than it answered. Was it possible, or permissible, to quantify the factor of race and ethnicity in making admissions decisions, without establishing quotas for any particular group? Was the goal of increasing student-body diversity a legitimate consideration in choosing between applicants from different racial and ethnic groups? University officials struggled with these questions for more than two decades after the Bakke decision, coming up with widely varying programs. Voters in California, for example, passed a proposition that prohibited schools from considering race or ethnicity at all. Texas legislators adopted a program that supposedly promoted diversity by setting aside university seats for the highest-ranking graduates of the state’s high schools, regardless of grades or test scores. Challenges to such programs produced conflicting rulings in state and federal courts, whose judges found Bakke a confusing road map. It was inevitable that conflicting lower-court decisions would force the Supreme Court to revisit Bakke and attempt to point university officials in the right direction.

  Two years into the Bush administration, in 2003, two affirmative action cases reached the Court. Both involved the University of Michigan, and both named the university’s president, Lee Bollinger, as the lead defendant. But the two cases raised challenges to separate admissions programs, with different procedures for choosing between applicants. The university’s College of Literature, Science, and the Arts, which enrolled more than thirty thousand undergraduates, had adopted a system under which applicants received points based on such factors as high school grades, standardized test scores, alumni relationships, “leadership,” and race. A total of one hundred points would guarantee admission to the undergraduate college, with members of “underrepresented minorities” receiving an automatic twenty points. Jennifer Gratz, a white applicant, was turned down for admission in 1995 and sued the university, claiming the twenty-point advantage for minority applicants violated her rights under the Equal Protection clause of the Fourteenth Amendment.

  Barbara Grutter filed a separate lawsuit to challenge her rejection by the University of Michigan law school. Unlike the undergraduate college, the law school did not employ a point system, but gave “substantial weight” to minority status in providing individualized conside
ration of each applicant’s credentials. Grutter claimed that race and ethnicity were the “predominant” factor in making admissions decisions that gave minority applicants an advantage over whites. The law school’s lawyers countered that it had complied with the Bakke decision in making race a “plus” factor without resorting to quotas or points on a numerical score. With only three hundred students in each entering class, they argued, it was essential to have a “critical mass” of minority students who could add their perspectives and experiences to class discussions and interactions with other students.

  The Gratz and Grutter cases created a political dilemma for the Bush administration. Polls showed that the president’s electoral base of white males opposed “racial preferences” by a wide margin. However, many corporate executives who funded Bush’s campaigns also supported affirmative action programs as good for their companies and customers. In addition, some of Bush’s top advisers publicly stated their sympathy with such programs. Secretary of State Colin Powell, the administration’s highest-ranking African American, noted that he had benefited from affirmative action in being admitted to the West Point military academy. “I believe race should be a factor among many other factors in determining the makeup of a student body of a university,” Powell told reporters. Bush’s national security adviser, Condoleezza Rice, a former Stanford University provost who is African American, agreed that “it is important to take race into consideration” if that was necessary to achieve diversity in higher education.

  Confronted with internal discord and pressure from his conservative backers, Bush tried to straddle the fence in the Michigan cases. “I strongly support diversity of all kinds, including racial diversity in higher education,” he stated in January 2003, shortly before the deadline for Supreme Court briefs. But he came down on the side of Jennifer Gratz and Barbara Grutter in their challenges to the university’s affirmative action programs. Both the undergraduate college and law school policies, he said, “amount to a quota system that unfairly rewards or penalizes prospective students, based solely on their race.” This statement was not factually accurate, since neither program set numerical quotas for minority students, but the president was not known for semantic clarity. Voicing his objection to racial quotas placated Bush’s conservative white supporters. “My administration will file a brief” arguing that the university’s programs “are unconstitutional,” he announced.

  Theodore Olson, who represented Bush as a private lawyer before the Supreme Court in his legal battle with Al Gore, had been rewarded for this successful effort with appointment as solicitor general. In this post, Olson filed friend of the court briefs in the Gratz and Grutter cases, arguing that the University of Michigan had concealed hidden quotas under the sheep’s clothing of goals to increase the number of racial minorities in its undergraduate college and law school. Olson’s briefs joined a pile of more than eighty on both sides of the two cases, of which almost seventy supported the university. Predictably, civil rights groups like the NAACP filed briefs supporting the university, while conservative organizations like the Pacific Legal Foundation backed the white plaintiffs. The biggest surprise, however, came in two briefs supporting the university. One was filed by General Motors, while the other spoke for a distinguished group of former military officers, most of them graduates of West Point and the Navy and Air Force academies. These briefs argued that affirmative action programs were necessary to achieve racial diversity in corporate workforces and the military officer corps.

  The Court handed down its rulings in the University of Michigan cases on June 23, 2003, five days before the twenty-fifth anniversary of the Bakke decision. The six opinions in Bakke reflected wide divisions over affirmative action, not only among the justices but within the American public as well. A quarter century later those divisions remained just as wide, perhaps even greater, as measured by the twelve separate opinions in the Grutter and Gratz cases. But the outcome of Bakke had not changed. A bare majority of five justices upheld the law school’s use of race as a plus factor in the Grutter case, while another majority of six struck down the undergraduate college’s twenty-point award to minority applicants in the Gratz case. The only principle that emerged from the stack of opinions in both cases was that admissions goals, even within a fairly narrow numerical range, are constitutional, but fixed numbers—whether of minority students admitted or points awarded to minority applicants—violate the Equal Protection clause.

  As was true in many closely divided cases, the Court’s two moderate justices, O’Connor and Kennedy, held the key to the outcome in the University of Michigan cases, as swing votes between four more liberal colleagues—Ginsburg, Stevens, Souter, and Breyer—and three conservatives, Rehnquist, Scalia, and Thomas. In the Grutter case, O’Connor sided with the liberals and wrote the majority opinion, which relied heavily on the friend of the court briefs of General Motors and the former military officers as showing the need for student body diversity in training students for leadership positions in business and the military. She cited the GM brief in writing that “major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” O’Connor also quoted the brief of the former officers as showing that “the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC use limited race-conscious recruiting and admissions policies.” Looking back to the Bakke decision, O’Connor noted that “it has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education.” The Bakke standard of considering race as a plus in admissions decisions, she said, had increased the number of qualified minority applicants to graduate and professional schools. But their proportions in most of these schools fell short of the critical mass that Michigan’s law school sought to achieve, and race-conscious measures were still necessary. O’Connor expressed optimism that the ultimate goal of racial parity was in sight. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” she concluded.

  All of the four Grutter dissenters, including Justice Kennedy, replied to O’Connor in opinions that ranged from temperate disagreement to scornful dismissal. Chief Justice Rehnquist complained that Michigan’s law school “has managed its admissions program, not to achieve a ‘critical mass,’ but to extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool.” On this point, Rehnquist cited the school’s records to make a persuasive case that minority admissions fit within predetermined numerical goals the school had set. His charges of a “disguised quota” behind the “ostensibly flexible” admissions program reflected more than a quibble over labels, but also Rehnquist’s consistent objections to any race-conscious affirmative action programs. In contrast to the chief justice’s moderated tone, Justice Thomas matched Scalia in denouncing his “elitist” colleagues for “responding to a faddish slogan of the cognoscenti.” The law school, he wrote, “tantalizes unprepared students with the promise of a University of Michigan degree and of all the opportunities that it offers. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition. While these students may graduate with law degrees, there is no evidence that they have received a qualitatively better legal education (or become better lawyers) than if they had gone to a less ‘elite’ law school for which they were better prepared.” Ironically, Thomas himself had benefited from the aggressive affirmative action program at Yale’s law school, an even more “elite” institution than Michigan. But his opinion made no mention of his own experiences as part of the critical mass of minority students at Yale.

  The soft numbers in the law school case passed constitutional must
er with Justice O’Connor, but she balked at the hard number in the Gratz case, switching sides—along with Justice Breyer—to join the six-to-three majority for which Chief Justice Rehnquist wrote a brief opinion. Although he had dissented in 1978 from Justice Powell’s approval of race as a plus factor in Bakke, Rehnquist lacked the votes in 2003 to overturn that decision. He stressed, however, Powell’s statement that race should not play a “decisive” role in university admissions. By awarding minority applicants twenty of the one hundred points required for undergraduate admission, Rehnquist wrote, race became the decisive factor “for virtually every minimally qualified underrepresented minority applicant,” violating the equal protection rights of white applicants like Jennifer Gratz.

  All three dissenters wrote opinions, although none matched Justice Thomas in scorn or sarcasm. Justice Souter noted that Michigan awarded twenty points to white graduates of predominantly black high schools, also a “race-conscious” policy. In addition, highly sought athletes received twenty points, and having a parent among the university’s alumni earned extra points. Most of the “extra” points, in fact, were totally unrelated to a prospective student’s academic record or promise. Souter found it “hard to see what is inappropriate in assigning some stated value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race.” Justice Powell’s plus factors are “necessarily assigned some values,” he wrote, both for track stars and for graduates of ghetto schools, white and black alike. While Souter focused on the plus factors other than race, Justice Ginsburg was more candid in her dissent. “The stain of generations of racial oppression is still visible in our society,” she wrote, “and the determination to hasten its removal remains vital.” If universities like Michigan, with thousands of undergraduate applicants, were precluded from using some numerical scale in selecting among them, Ginsburg warned, they “may resort to camouflage,” such as encouraging applicants to focus on their “cultural heritage” in personal essays. “If honesty is the best policy,” she concluded, “surely Michigan’s accurately described, fully disclosed affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.”