by Peter Irons
The justices heard argument in Regents v. Bakke on October 12, 1977. The dozens of amicus briefs piled on the bench testified to the high stakes in this case. The groups on the university’s side included the ACLU, the Association of American Medical Colleges, the NAACP, and the National Council of Churches of Christ. Siding with Bakke were the American Federation of Teachers, the American Jewish Committee, the Fraternal Order of Police, the Sons of Italy, and Young Americans for Freedom. The civil rights coalition of blacks and Jews, who marched together for twenty years after Brown, had split over Bakke amid charges of racism on both sides.
The arguments inside the Court did not mention the acrimony outside its chamber. Archibald Cox took the podium first. The University of California Regents had hired the noted Harvard law professor because their own lawyers, although they won the case in state court, lacked the Supreme Court experience that Cox, a former solicitor general under President Kennedy had in abundance. Cox made a professorial appeal for the medical school’s Task Force program. “There is no racially blind method of selection which win enroll today more than a trickle of minority students in the nation’s colleges and professions,” he asserted. But the Task Force quota of sixteen places raised judicial eyebrows. Justice Potter Stewart asked a skeptical question: “It did put a limit on the number of white people, didn’t it?” Cox dodged the question, responding that “the designation of sixteen places was not a quota, at least as I would use that word.” He preferred the word “goal.” Justice John Paul Stevens, the Burger Court’s newest member, tried to pin Cox down. “The question is not whether the sixteen is a quota; the question is whether the eighty-four is a quota.” Cox wriggled away. “I would say that neither is properly defined as a quota.” He explained that since minority applicants could apply through the “regular” admission process, the Task Force program did not place “a limit on the number of minority students.” Pressed to provide a “compelling” interest for the program, Cox argued that “the minority applicant may have qualities that are superior to those of his classmate who is not minority.” A Chicano doctor “certainly will be more effective in bringing it home to the young Chicano that he too may become a doctor.”
Archibald Cox mentioned Allan Bakke just once, conceding that he “would be ranked above the minority applicant” under the “conventional standards for admission” to UC Davis. When he took the podium, Reynold Colvin talked only about Allan Bakke. “I am Allan Bakke’s lawyer and Allan Bakke is my client,” he reminded the justices. Colvin addressed the justices as if they were members of the UC Davis admission committee. “Look at the record in the case,” he urged. find it on page 13 of our brief.” He rattled off Bakke’s impressive grades and scores, noting how much he outshone the minority applicants.
Justice Lewis Powell finally grew tired of Colvin’s figures. “You have devoted twenty minutes to laboring the facts, if I may say so,” he said. “I would like help, I really would, on the constitutional issues.” But the dogged Colvin preferred talking about quotas. “What is the appropriate quota for a medical school? Sixteen, eight, thirty-two, sixty-four, one hundred?” Justice William Rehnquist tried to interest Colvin in the Constitution. Cox had argued, Rehnquist said, that UC Devis “could take race into account, and that under the Fourteenth Amendment there was no barrier to doing that, because of the interests that were involved. Now, what’s your response to that?” Colvin answered that “race is an improper classification in this situation.” Justice Thurgood Marshall wanted to know if UC Davis could reserve just one place for a minority student. Colvin’s negative answer provoked Marshall. “So numbers are just unimportant?” he asked. “The numbers are unimportant,” Colvin replied. “It is the principle of keeping a man out because of his race that is important.”
How would the Burger Court resolve this dilemma? During their conference after the arguments, the justices split into two factions, each unwilling to compromise. It would take a Solomon to decide the Bakke case, with compelling interests on both sides and no clear-cut answer in the Constitution. As it happened, the Court had a Solomon on the. bench, willing to cut the baby in half. With four justices on either side, Lewis Powell proposed giving Bakke and UC Davis what each wanted. Bakke would get into medical school, and minorities would receive a “plus” in the admissions process. The Davis quota of sixteen places would be replaced by a “race-conscious” program that could even exceed that number in admitting minorities.
Lewis Powell assumed his Solomonic role only because William Douglas had grudgingly left the bench in November 1975 after thirty-six years, the longest service of any justice. Crippled by strokes, Douglas tried to hang on, even writing opinions after his resignation. He finally gave up trying to be the “tenth justice” after his embarrassed colleagues ignored his memos. Douglas would certainly have voted to uphold the UC Davis program, but his replacement took Bakke’s side. John Paul Stevens, a former clerk to Justice Wiley Rutledge, had practiced antitrust law in Chicago before President Nixon named him to the federal appellate bench in 1970. A judicial “moderate” in the Potter Stewart mold, Stevens would not have joined the Court if Nixon, crippled by Watergate, had not resigned in August 1974 after trying to hang on as president in the face of certain impeachment. Ironically, Warren Burger, who had administered the oath in which Nixon swore to “protect and defend the Constitution,” wrote the unanimous opinion that forced him to hand over the “smoking gun” Watergate tapes revealing Nixon’s contempt for the Constitution. Nixon would certainly have replaced Douglas with a more conservative justice than Stevens, who became Gerald Ford’s sole nominee in November 1975.
It took Lewis Powell eight months to draft an opinion—actually two opinions in one—stating “the judgement of the Court” in the Bakke case. The first section of Powell’s opinion also spoke for Burger, Rehnquist, Stewart, and Stevens. These five justices struck down the UC Davis quota system, ruling that it established “a classification based on race and ethnic background.” Powell cited the Japanese American internment. cases, Hirabayashi and Korematsu, in writing that “racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.” After examining Allan Bakke’s skin, Powell stated that “discrimination against members of the white ‘majority’” could not pass the “strict scrutiny” test. Speaking of minority groups, Powell wrote that the Equal Protection Clause does not permit “the recognition of special wards entitled to a degree of protection greater than that accorded others.” Consciously or not, Powell echoed the words of Justice Joseph Bradley in 1883, writing in the Civil Rights Cases that the Fourteenth Amendment did not make blacks “the special favorite of the law.”
At this point in Powell’s opinion, the four justices who had been riding with him got off the train. They had achieved their goal of striking down racial quotas and had no desire to travel with Powell into “race-conscious” territory. For the joined the excursion. In the second part of Powell’s opinion, he asserted that “race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file,” to be counted along with grades and test scores. The “plus” factors could also include “exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important” to making good doctors. Powell’s formula allowed UC Davis and other schools to “take race into account” in choosing students, although that factor could not be “decisive” in admissions decisions.
Unlike Solomon, who never cut the disputed baby in half, Powell sliced the Bakke case down the middle and handed each party what it wanted. But this compromise did not satisfy the four justices who supported the UC Davis quota system. They produced a separate opinion—dratted by William Brennan—disputing claims that officials must be “color-blind” in choosing between applicants for jobs and schools. Brennan
’s opinion noted that “race has too often been used by those who would stigmatize and oppress minorities.” The American people, he wrote, cannot “let color blindness become myopia which masks the reality that many ‘created equal’ have been treated within our lifetimes as inferior both by the law and by their fellow citizens.”
The Court’s only black member, Thurgood Marshall, felt compelled to remind his colleagues—and those few Americans who actually read the opinions—that “the Negro was dragged to this country in chains to be sold into slavery.” Marshall cited books by John Hope Franklin and C.Vann Woodward in presenting a brief but graphic history of slavery and its legacy. “The system of slavery brutalized and dehumanized both master and slave,” he wrote. Marshall recalled the “Great Compromise” at the Constitutional Convention in Philadelphia, where “the Framers made it plain that ‘we the people,’ for whose protection the Constitution was designed, did not include those whose skins were the wrong color.” Marshall linked this history to the present. “The position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment,” he continued. “Measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream for the Negro.”
The justices produced five opinions in the Bakke case, spread over 153 pages of the Court’s reports. Harry Blackmun’s came last, and he spoke a final word on race and the Constitution. “In order to get beyond racism,” he wrote, “we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot—we dare not—let the Fourteenth Amendment perpetuate racial supremacy.”
Chief Justice Charles Evans Hughes once said that “the Constitution is what the judges say it is.” But what did they say in Bakke? The inability of nine justices to agree on a clear statement of what the Fourteenth Amendment says to UC Davis admissions officials speaks volumes about the continuing racial chasm in
American society. The Supreme Court refused in 1997 to hear a challenge to the new policy of the University of California Regents, who voted in 1995 to remove any “plus” factors based on race or ethnicity in admissions decisions. Under the university’s “color-blind” policy, the number of black and Hispanic students entering the nation’s largest public university system has dropped by more than half. The first-year class at the UC Davis medical school in 1998 included just five black and three Hispanic students. That same year, not a single black student entered the university’s prestigious law school at Berkeley. Allan Bakke, meanwhile, received his medical degree from Davis in 1982 and returned to Minnesota, where he practices anesthesiology.
The Burger Court dealt in Roe with women, and in Bakke with racial and ethnic minorities. Over the past century, member of these groups have often courted arrest to make a visible demand for their rights. Suffragettes chained themselves to the White House fence, and black students sat down at segregated lunch counters. These protestors sought public attention for their cause and welcomed reporters and photographers to their marches and picket lines. News reports and pictures of peaceful demonstrators being shoved into paddy wagons shocked the public and helped build support for their demands.
Before 1969, however, members of one minority group shied away from the media spotlight and rarely protested their mistreatment. America’s homosexuals largely stayed in their closets, invisible to their neighbors but often harassed by hostile police officers. In many cities, cops invaded gay bars with impunity, closing them down on any pretext and shoving their patrons into the streets. Most gays and lesbians were afraid to resist; they feared arrest and exposure, which might cost them their jobs or even their families. But the example of civil rights and antiwar protesters inspired many gays who were fed up with constant harassment. New York City police made a serious mistake when they raided the Stonewall Inn on the hot summer night of June 29, 1969. Refusing to leave the gay bar in Greenwich Village, gays fought back in bloody battles that spilled into the streets and lasted for three nights. Out of the “Stonewall Riots” came the Gay Liberation Movement, which soon moved its agitation from the streets to council chambers and courtrooms.
Gays protested police abuse and worked against discrimination in jobs and housing. But their primary goal was to repeal or strike down sodomy laws, which threatened gays with long prison terms in most states. All the original thirteen states had made sodomy a criminal offense when the Bill of Rights was ratified in 1791. As late as 1961, all fifty states had outlawed sodomy, defined in Georgia’s law—similar to those in other states—as “any sexual act involving the sex organs of one person and the mouth or anus of another” Georgia imposed a maximum penalty for sodomy of twenty years in prison. Studies indicated that but police almost never charged straight people with this crime. (This form of sex between Monica. Lewinsky and President Bill Clinton later made “sodomy” a household word, one that even children learned.) The quiet lobbying of gay organizations like the Mattachine Society had succeeded by 1975 in the repeal of sodomy laws in half the states. But none of those states was below the Mason—Dixon line, where hostility toward gays fed on the “good ol’ boy” syndrome of exaggerated masculinity.
The road to the Supreme Court for gays began in Atlanta, Georgia, early in the morning of August 3, 1982. Officer K. D. Torick entered Michael Hardwick’s house in the Virginia Highlands neighborhood, home to many of Atlanta’s gays. Torick carried a warrant for Michael’s arrest on a charge of failing to appear in court for drinking in public. Several weeks earlier, Torick had ticketed Michael outside the gay bar he worked in for carrying an open beer bottle. Michael had argued that the bottle was almost empty, but Torick gave him the ticket anyway. Although Michael had paid his $50 fine, Torick had not checked the record before he got the arrest warrant. He had a reputation for busting gays, and he wanted to bust Michael Hardwick for talking back. When Officer Torick entered Michael’s home, someone pointed him upstairs; he pushed open a bedroom door and saw two men engaged in mutual oral sex. He arrested Michael and his friend, handcuffed them, drove them to the downtown police station, booked them for sodomy, and tossed them into the holding tank, informing both guards and prisoners in graphic terms of the charges against the two gay men, who were finally released on bail after twelve unpleasant hours in jail.
Several days after Michael’s arrest, an ACLU lawyer contacted him with an offer of legal help. The ACLU staff had been checking the police blotter for sodomy arrests, hoping to find someone willing to challenge the Georgia law on constitutional grounds. Michael understood the risk in this effort; he faced a twenty-year prison term and the unwelcome glare of publicity. Michael had already been beaten up once—after he argued with Officer Torick—by three strangers who knew his name. But he told the ACLU lawyers he would take the risk; he was sick and tired of being harassed for being gay.
Getting wind of the ACLU’s interest in Michael’s case, the district attorney dropped the sodomy charge. The ACLU lawyer, Kathleen Wilde, promptly filed suit in federal court against Georgia’s attorney general, Michael Bowers, asking for a judicial declaration that the sodomy law violated the Due Process Clause of the Fourteenth Amendment. After hearing argument on the constitutional issues, federal judge Robert Hall dismissed the suit, citing a 1975 ruling by a federal appellate panel in a Virginia case that homosexual sodomy was not protected by the Constitution because it “is obviously no portion of marriage, home or family life.” Punishment of sodomy “is not an upstart notion,” the appellate judges had ruled in Doe v. Commonvealth’s Attorney; “it has ancestry going this decision.
Kathleen Wilde appealed judge Hall’s dismissal order to the federal appellate court in Atlanta, and waited two years for a decision. The result was worth the long wait. Judge Frank M. Johnson, who had endured much criticism for his consistent support of civil rights, held in Michael’s case that “private consensual sexual behavior among adults” was protected from punishment. “Fo
r some,” he added, “the sexual activity in question here serves the same purpose as the intimacy of marriage.”
Georgia officials recoiled from Johnson’s decision and asked the Supreme Court to reverse his ruling. Confronted with a rejection of Doe, the justices agreed to deal with gay fights for the first time. Georgia’s brief in Bowers v.Hardwick rested on two millennia of Judeo-Christian morality. Homosexuality had been condemned throughout, history, it argued, and the state’s lawmakers had agreed in 1816—when the law was first passed—that “it is the very act of homosexual sodomy that epitomizes moral delinquency.” Attorney General Bowers presented the Court with a “parade of horrible” in his brief, claiming that “homosexual sodomy leads to other deviate practices such as sado-masochism, group orgies, or transvestism, to name only a few.” He brought the brief up to date by asserting that Georgia lawmarkers “should be permitted to draw conclusions concerning the relationship of homosexual sodomy” to AIDS. Bowers neglected to note that his state’s law was passed 150 years before the AIDS virus was discovered.
