In specific terms, there were two legal questions at issue. In light of O’Connor’s opinion in Croson, the Michigan lawyers knew that the Court would apply strict scrutiny to the affirmative action programs. So the first question was whether fostering diversity could ever be a “compelling interest”—that is, the kind of factor that might lead the Court to allow the Michigan programs to withstand the usually fatal strict scrutiny. The second question, which would be reached only if the first one was decided in Michigan’s favor, was whether the undergraduate and law school admissions programs were narrowly enough tailored to meet the goal of advancing diversity.
O’Connor didn’t make the lawyers wait long for her first question. The argument by Kirk Kolbo, who was representing Grutter in the law school case, had an elegant simplicity. For the university to consider the diversity of its applicants was fine—but only on the basis of experiences or perspectives or geography, not on the basis of race. To Kolbo, the Constitution forbade any consideration of race, as a plus or minus factor for any candidate.
“You say that race can’t be a factor at all, is that it?” O’Connor asked. “Is that your position, that it cannot be one of many factors?”
Right, said Kolbo. “Our view, Your Honor, is that race itself should not be a factor among others in choosing students.”
“Well, you have some precedents out there that you have to come to grips with”—mostly, she meant Bakke—“because the Court obviously has upheld the use of race in making selections or choices in certain contexts,” she replied. “But you’re speaking in absolutes and it isn’t quite that.” As usual, O’Connor abhorred absolutes.
But the turning point in the argument began when Ginsburg spoke up. “Mr. Kolbo, may I call your attention…to the brief that was filed on behalf of some retired military officers who said that to have an officer corps that includes minority members in any number, there is no way to do it other than to give not an overriding preference but a plus for race,” Ginsburg said. Would it really be acceptable to have no minorities in the service academies? Kolbo tried to dodge, saying there was no evidence in the record of this case about the military academies.
But Stevens followed up, saying there was good evidence about the academies: “If the brief is accurate about the regulations, the academies have taken the position…they do give [racial] preferences.” Souter, too, asked about the policies at the service academies. Again, Kolbo said he didn’t know about the policies in Annapolis; this case was about Ann Arbor. But Stevens wouldn’t let the subject alone. “Are you serious that you think there’s a serious question about that? That we cannot take that green brief as a representation of fact?” (Amicus briefs in the Supreme Court have green covers.) Kennedy jumped in with a question about “the green brief.” Amicus briefs are rarely mentioned in Supreme Court oral arguments, but four justices had referred to the military brief in the first several minutes of Grutter.
And the justices were just warming up on the subject. The position of the federal government in the Michigan cases had been so controversial that ultimately President Bush himself had to resolve the issue. On the day before the briefs in the case were due, Bush made an announcement, in a speech broadcast on live television, that the administration would oppose the Michigan program. “I strongly support diversity of all kinds, including racial diversity in higher education,” he said. “But the method used by the University of Michigan to achieve this important goal is fundamentally flawed. At their core, the Michigan policies amount to a quota system that unfairly rewards or penalizes prospective students based solely on their race.” That, he said, was “divisive, unfair, and impossible to square with the Constitution.” (Notably, in a television appearance later that week, Colin L. Powell, then the secretary of state and a close friend of several signers of the military brief, declined to endorse the administration position.)
Bush’s speech employed rhetoric that pleased his conservative base—and reflected the well-established views of Scalia and Thomas—but the brief filed by Theodore B. Olson, the solicitor general, took a more nuanced view of the issue. Olson’s brief carefully avoided the question of whether a university could ever consider race in admissions—and took no position on whether Bakke should be overturned. He said only that the Michigan programs amounted to quotas and should be rejected. That was the position that Olson hoped to express when he stood up to argue in Grutter, but he never got the chance.
Before Olson could say anything, Stevens said, “General Olson. Just let me get a question out. You can answer it at your convenience. I’d like you to comment on Carter Phillips’s brief. What is your view of the strength of that argument?…That’s the one about the generals and about the military academies.”
“We respect the opinions of those individuals,” Olson said, “but the position of the United States is that we do not accept the proposition that black soldiers will only fight for black officers or the reverse.” Olson was attacking a straw man, and the justices knew it. The retirees were not saying that blacks would only fight with blacks, they were saying that the military had a strong interest in an integrated officer corps.
Ginsburg went after him next. “But you recognize, General Olson, that here and now, all of the military academies do have race preference programs in admissions?” He did.
“Is that illegal what they’re doing…a violation of the Constitution?” Ginsburg followed up. This was an exquisitely difficult question. If Olson said yes, he admitted that the federal government was violating the law; if he said no, he looked like a hypocrite. So Olson avoided the issue, saying he had not studied the admissions programs at the academies.
Next it was Souter’s turn to wave the green brief, demanding to know how race-neutral recruiting could “respond to the position taken in Mr. Phillips’s brief…. They simply will not reach a substantial number or be able to attain a substantial number of minority slots in the class.” Respectfully, Olson disagreed.
As its lead lawyer in the case, Michigan had hired Maureen Mahoney, and her presence was another reflection of the university’s political strategy of tying its cause to the establishment. Before becoming a partner at Latham & Watkins, Mahoney had been a deputy solicitor general under Kenneth Starr and a law clerk to Rehnquist. (During the argument in Grutter, the chief slipped once and called her “Maureen.”) A Republican, Mahoney had been nominated to a federal trial judgeship in Virginia during the last months of the George H. W. Bush administration. The Senate never brought Mahoney up for a vote—John Roberts’s original nomination to the D.C. Circuit suffered the same fate—so she had the chance, like Roberts, to become one of the leading Supreme Court advocates of her generation. The fact that she came before the Court in Grutter bearing impeccable conservative credentials made her all the more appealing as Michigan’s messenger.
By the time Mahoney reached the podium, she could tell the Court was leaning her way. No justice had really questioned the first issue before them—whether diversity was a legitimate goal—and the only question appeared to be whether Michigan had gone too far to achieve a worthy end. Mahoney deftly parried Scalia’s and Kennedy’s attempts to portray the Michigan program as a “quota,” but then O’Connor came up with a question that had occurred to her while she was reading Bakke.
“Ms. Mahoney, may I shift focus away from this to another point before you’re finished that I am concerned about,” O’Connor said. “In all programs which this court has upheld in the area of what I’ll label affirmative action, there’s been a fixed time period within which it would operate, you could see at the end an end to it. There is none in this, is there? How do we deal with that aspect?”
O’Connor was raising one of the more profound questions in American life. When will race no longer matter? The question captured O’Connor’s ambivalence on the issue of affirmative action—and her practical, solution-oriented turn of mind. To her, racial preferences were a dubious and extreme remedy at best, and she wanted to make sure they we
re not enshrined for all time. So how much longer would they be needed?
Mahoney answered with an artful segue: “Well, in Bakke itself, Your Honor, there were five votes to allow the University of California, Davis, to use a plan modeled on the Harvard plan. It’s been in effect for about 25 years. It has reaped extraordinary benefits for this country’s educational system.” The answer planted a seed.
Most of the public attention on Grutter and Gratz—the law school and undergraduate cases—treated the two cases as a single controversy, but there were significant differences between the two admissions programs. To narrow the 3,500 law school applicants to a class of 350, Michigan evaluated each candidate individually, guided by a “focus on academic ability coupled with a flexible assessment of applicants’ talents, experiences, and potential to contribute to the learning of those around them.” The undergraduate admissions assessment was more strictly numerical, with each student evaluated on a 150-point scale, with students who received more than 100 points guaranteed admission. Points were awarded for high school grade-point average, standardized test scores, and other non-racial factors, but status as a minority also earned applicants an automatic additional 20 points.
As O’Connor prepared to cast her vote in conference, the difference between the two programs loomed large for her. The undergraduate program was not exactly a quota, as Bush had claimed, but its rigidity—the fact that all “underrepresented” minorities were given the exact same number of points—offended O’Connor. In contrast, the law school procedure looked more like the Harvard program that was praised by Powell in Bakke. It allowed each applicant to be treated as an individual. Once again, she decided to split the difference—to vote for Gratz and against Grutter. (Breyer voted the same way, affirming the growing ideological as well as personal alliance between him and O’Connor.) The others voted more predictably, Rehnquist, Scalia, Kennedy, and Thomas for both plaintiffs; Stevens, Souter, and Ginsburg for the university. The overall votes were 5–4 for the university in Grutter, the law school case; 6–3 for the rejected student in Gratz, the undergraduate case.
Grutter would clearly be the more important case, because it would be the one where the five justices outlined when and how race would be permitted to be considered as a factor in university admissions. (The six-justice majority in Gratz could say only that the undergraduate program did not meet the new Grutter standard.) The central question coming out of the conference was who would write the main opinion.
The decision was up to Stevens, because he was senior among O’Connor, Souter, Ginsburg, and Breyer. (Rehnquist assigned Gratz to himself.) Only a week earlier, Stevens had given the majority opinion in the other big case of the term, Lawrence v. Texas, to Kennedy. Would Stevens really be selfless enough to hand off Grutter as well? He had just turned eighty-three. How many more big opinions could he expect to come his way? Stevens took the weekend to think it over, and, following a conversation with O’Connor, he gave her Grutter to write.
Stevens’s decision took wisdom and selflessness. O’Connor was clearly the shakiest member of the majority in Grutter, and if Stevens had kept the case for himself—as many other justices might have done in similar circumstances—he might ultimately have lost her vote and thus the majority. But Stevens cared more about the issues and less about his own ego; he could sacrifice high-profile assignments more easily than some of his colleagues. Besides, Stevens knew better than most that it took a long time, sometimes decades, for the real winners in Supreme Court jurisprudence to emerge. In 1986, Stevens had written a powerful, if little-noticed, dissenting opinion in Bowers v. Hardwick, the case that upheld the homosexual sodomy prosecution in Georgia. (Harry Blackmun’s more rhetorically flashy dissent drew most of the attention in that case.) But when it came time for Bowers to be overruled in 2003, in Lawrence, Kennedy drew heavily on Stevens’s seventeen-year-old opinion. So, with the shrewdness of age, Stevens handed the prize Grutter assignment—the biggest case since Bush v. Gore—to O’Connor.
Even though O’Connor’s clerks wrote the first drafts of her opinions, they still had a distinctive style—or antistyle. She would never indulge in a Kennedyesque flourish like “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” nor would she, like Scalia, assert that an opposing argument was “really more than one should have to bear.” She lined up the facts, usually laid out in some detail, summarized the relevant law, and applied the law to the facts. To O’Connor, the result always mattered more than the rhetoric. She usually began with a crisp statement of the issue at hand. In Grutter, it was: “This case requires us to decide whether the use of race as a factor in student admissions by the University of Michigan Law School is unlawful.”
O’Connor had a clear model for her opinion in Grutter—Powell’s statement in Bakke. She recounted the Michigan law school’s admission procedures in detail, noting the university’s broad commitment to diversity of all kinds, not just “racial and ethnic status.” O’Connor said that Michigan sought a “critical mass” of minority students, but, significantly, there was “no number, percentage, or range of numbers or percentages that constitute critical mass.” Rather, as the lower court in the case held, “the Law School’s program was ‘virtually identical’ to the Harvard admissions program described approvingly by Justice Powell and appended to his Bakke opinion.” O’Connor then summarized Powell’s opinion at length, noting that he “approved the university’s use of race to further only one interest: ‘the attainment of a diverse student body.’ ”
As for whether “diversity” was a “compelling state interest,” O’Connor said she trusted universities to make that judgment on their own, without guidance from the courts, because “universities occupy a special niche in our constitutional tradition.” This observation wasn’t just a gesture of deference to educational institutions but also a way of doing what O’Connor often tried to do, which was limit the reach of the Court’s opinion. She was taking pains to approve affirmative action at universities, but she was not ruling on the practice in other contexts, like employment or contracting.
O’Connor next turned to the subject that dominated the oral argument—the brief from the retired military officers. She quoted Carter Phillips’s brief at length and then, in an extraordinarily rare tribute, simply adopted its words as part of the Court’s opinion: “To fulfill its mission, the military ‘must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting.’ ” Before submitting his brief, Phillips had worried that the Court might observe (correctly) that there were big differences between a military service academy and a law school, and thus find no relevance of one to the other; but O’Connor did just the opposite. Quoting the brief again, she wrote, “We agree that ‘it requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.’ ”
In all, considering the oral argument and O’Connor’s opinion, the submission from the retired officers may have been the most influential amicus brief in the history of the Court. In notable contrast, O’Connor disdained the Bush administration’s brief in the case. She respected Olson, the solicitor general, but she regarded his brief as a political document, the product of an administration from which she was growing more and more estranged.
The draft by O’Connor’s clerk did not address her last question to Mahoney—about when affirmative action would no longer be needed. O’Connor regarded race consciousness as nothing more than a necessary, or at least permissible, evil. She did not want to see it go on forever. But how could she or anyone else fix an ending date?
After twenty-two years on the Court, many of them as the most important vote, O’Connor had an abundance of self-confidence, so she simply made up a time limit. She told a clerk to write an insert: “It has been 25 years since Justi
ce Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
The imposition of the time limit was O’Connor at her worst—and her best. To be sure, O’Connor was “legislating from the bench,” in the accusatory term that conservatives like Bush used to describe activist judges. From the vague commands of the Constitution, she was extrapolating not just a legal rule but a deadline as well. To originalists like Scalia and Thomas, this was simple judicial arrogance. And one need not be an originalist, or even a conservative, to have qualms about O’Connor’s proclamation. By what right does an unelected judge impose such detailed rules on a society? And if the practice will be unconstitutional in twenty-five years, why isn’t it illegal now?
“The majority does not and cannot rest its time limitation on any evidence that the gap in credentials between black and white students is shrinking or will be gone in that time frame,” Thomas noted in his dissent. “No one can seriously contend, and the Court does not, that the racial gap in academic credentials will disappear in 25 years. Nor is the Court’s holding that racial discrimination will be unconstitutional in 25 years made contingent on the gap closing in that time.” Moreover, if O’Connor could legislate in this matter on affirmative action, what was to stop her colleagues from establishing codes of behavior in other areas? The answer, of course, was that the only restraints on the judge in such circumstances are his or her conscience and savvy.
The Nine Page 27