In 2003, U.S. Supreme Court Justice Sandra Day O’Connor, with one foot out the door to care for her beloved husband, did the country a last favor by resolving the affirmative action debate in college admissions once and for all. Or so we thought.
Tuesday, the Supreme Court reopened the issue by agreeing to hear an appeal challenging policies at the University of Texas that were designed to comply with the case law as it exists.
O’Connor’s resolution of the affirmative action issue came in one of the strangest -- and most practical -- packages of any Supreme Court decision in the modern era. The weirdness did not lie in her rationale, which was a straightforward compromise. In the twin cases of Grutter v. Bollinger and Gratz v. Bollinger, the court held that affirmative action could not proceed according to a strict point system that weighed race explicitly, but that race could be used in a more inchoate way when composing a diverse student body. The reason, O’Connor explained in Grutter, was that diversity of experience and background was itself an educational value for everybody.
Legal Time Limit
What made these judgments shocking was the time limit --or, if you will, time fuse -- that she put on her opinion. In a striking coda, O’Connor wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
This time limit represented a new extreme in the use of judicial pragmatism to interpret the Constitution. Whether the guarantee of equal protection does or does not allow race-conscience admissions would seem on its face to be a matter of principle. And principles -- at least the ones in the Constitution -- are supposed to be true for the centuries. Needless to say, the Constitution does not specify that equal-protection rights should ebb and flow with the generational cycle.
Yet O’Connor was on to something, as she usually was in her long judicial career. Even the form of her compromise, allowing vague affirmative action but not the explicit kind, reflected her reading of what the public could bear.
No one was better than O’Connor at intuiting the constitutional values of the median voter. On issues such as abortion rights and the separation of church and state, she had an extraordinary knack for delivering opinions that resonated with sensible, middle-of-the-road people. There is every reason to believe that she was able to achieve this unconscious tracking of the opinion polls simply by using her own prodigious common sense.
When it comes to Supreme Court decisions, common sense is not to be dismissed lightly. In the U.S., as Alexis de Tocqueville first observed, controversial political issues inevitably become constitutional questions. Because the court’s job is to resolve constitutional problems, it will almost by necessity find itself taking on difficult and divisive questions. Pragmatic constitutional decision-making demands that the court resolve such questions in a way that actually works. Finding the median political ground is one route to such a pragmatic outcome.
Perhaps Too Brilliant
Seen from this angle, putting a 25-year window on a pragmatic resolution of affirmative action was logical, even brilliant. On the one hand, it was meant to reassure advocates of race-blind admissions that the decision was not meant to last forever. On the other hand, it was intended to provide a safe harbor for educational institutions to know that they would be safe maintaining their policies for the medium term.
But perhaps the gambit of putting an explicit expiration date on the constitutional opinion was just a little bit too brilliant. Legal decisions, it is true, are meant to create settled expectations so that the people governed by them can plan their lives accordingly. Yet the law is about more than creating a regularized climate for investments, whether educational or material. Law is also about principle -- or at least it’s supposed to be.
By openly acknowledging that the legality of using racial diversity in admissions decisions was limited to a specific time context, Justice O’Connor weakened the capacity of her decision to stand for a principle. She was gambling that her specificity would remind future justices of just how controversial the affirmative action issue is and encourage them to avoid it until absolutely necessary.
That gamble, it now appears, did not pay off. For the current conservative justices, the lack of principle at the core of O’Connor’s compromise provides vindication for revisiting it less than a decade after the 25-year clock started ticking.
The conservatives have good reason to believe that they could win this time. Justice Anthony Kennedy, the new swing vote since O’Connor’s retirement, did not join Justice O’Connor’s opinion in 2003. He has generally sided with conservatives when the question has arisen. No one doubts that Justice Samuel Alito, who replaced O’Connor, would embrace the conservative vision of the colorblind Constitution that Justice Antonin Scalia has eloquently and adamantly repeated over the years.
The Swing Vote
It is not inconceivable that Kennedy might take refuge in a moderate opinion that upheld the O’Connor compromise, explaining that although he did not agree with that opinion, it was nevertheless settled doctrine. That was the position he took -- alongside O’Connor and Justice David Souter -- in the 1992 Planned Parenthood v. Casey decision that declined to overrule Roe v. Wade. The three of them signed an opinion that included the phrase, “liberty finds no refuge in a jurisprudence of doubt” -- vintage Kennedy purple prose.
Even if Kennedy were to opt for restraint, the conservatives would be no worse off than they are under the O’Connor compromise as it stands. Unlike the same-sex marriage issue, there seems to be no chance of Justice Kennedy taking a more liberal position on affirmative action than he has previously.
This is an election year. Putting affirmative action on the agenda is an extraordinary gift to the Republican presidential candidate, who will be a white man running against an African-American incumbent. Pushing President Barack Obama to defend affirmative action, as he will inevitably have to, can only cost him swing voters. Justice O’Connor wanted affirmative action off the political radar screen. Now the conservative justices want it back on. Having left the high court, O’Connor will find there is nothing she can do about it.
(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)
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