Historically, strict scrutiny of a law or government program meant automatic invalidation. Was O’Connor ruling out all race-conscious programs, even if they were designed to help disadvantaged minorities? No, not exactly, because here was where O’Connor hedged. Richmond had put its set-aside plan in place without any research on whether minority subcontractors had been discriminated against in that city. The law was based solely on the general sense that there had been a history of discrimination in the field. To O’Connor, that was an inadequate justification, but she raised the possibility that a city might make findings that did justify a racially conscious set-aside plan. “Nothing we say today precludes a state or local entity from taking action to rectify the effects of identified discrimination within its jurisdiction,” she wrote. “If the city of Richmond had evidence before it that nonminority contractors were systematically excluding minority businesses from subcontracting opportunities, it could take action to end the discriminatory exclusion.”
So the O’Connor position seemed to be that affirmative action was permissible, but only as redress for identifiable discrimination against specific people. Her standard raised as many questions as it settled. What was systematic discrimination? How could it be identified? Did remedies have to go only to the specific victims? Or could the benefits go to a minority community at large? O’Connor never spelled out the answers to all these uncertainties, but she did stick with the same basic ideas in subsequent cases: some affirmative action was permissible—but not too much.
If O’Connor’s position on racial issues remained something of a mystery, those of her colleagues did not. Four of them—Rehnquist, Scalia, Kennedy, and Thomas—believed in a “color-blind” Constitution; they thought all laws that drew distinctions based on race, including those that purported to help minorities, should be struck down. Four others—Stevens, Souter, Ginsburg, and Breyer—believed that for the most part government and businesses could give advantages to racial minorities, either to redress prior discrimination or to foster the goal of diversity. More than on any other issue, the Court was divided four-to-four-to-one.
No school in the nation made a greater commitment to affirmative action than the University of Michigan, especially in admissions. Given the vast size of its undergraduate college, Michigan used a statistical test, based primarily on grades and SAT results, for most admissions decisions. Because blacks generally scored lower than whites in both categories, a purely numerical admissions process would have resulted in virtually all-white and Asian classes. Under the program that Michigan adopted, the boosts for minority applicants could be substantial. A minority applicant with a 3.5 grade-point average and a combined SAT score of 1200 would automatically be accepted, and a white candidate with the same scores would likely be rejected. The law school admission process, which involved fewer students, entailed more individualized assessments of applicants but still gave significant advantages to blacks. One year, among applicants with grade-point averages between 3.25 and 3.49 and LSAT scores between 156 and 158, one of fifty-one whites was admitted, and ten of ten blacks were.
Conservative public interest groups like the Center for Individual Rights—a civil rights counterpart to Jay Sekulow’s religion-based outfit—had been scouring the country to find the right places to challenge racial preferences. The stark numbers at Michigan made the school an inviting target, as did the availability of sympathetic plaintiffs.
Barbara Grutter was one of nine children of a minister in the Calvinist Christian Reformed Church. When her own children were small, she ran a medical consulting business out of her house, and eventually decided to apply to the University of Michigan Law School, which had a joint program in her field, health care management, and law. She had a 3.8 grade-point average from her under-graduate days at Michigan State and scored 161 on the LSAT. A black student with those grades and scores would certainly have been admitted to the law school, but Grutter was placed on the waiting list and then rejected. Jennifer Gratz, also white, was similarly well qualified for admission to Michigan’s undergraduate program and was also placed on the waiting list and then rejected. Both women filed their lawsuits in late 1997, and then began their long march through the federal trial and appellate courts.
From the start, both cases—Grutter v. Bollinger and Gratz v. Bollinger—were causes célèbres. (Lee C. Bollinger was then president of the University of Michigan.) By some reckonings, the Court was moving in the direction of striking down all racial preferences, and the Michigan cases appeared to be nearly ideal vehicles for supporting that position. O’Connor herself seemed to be inching rightward on the issue, most notably in her opinion for the Court in Adarand Constructors, Inc. v. Pena, in 1995. There she reversed a lower court ruling that upheld a federal affirmative action program for minority contractors, but she saw no reason to rule on every affirmative action program in the context of that single case; still, the judicial momentum, as well as the rhetorical energy, seemed to belong to the opponents of such programs. As Scalia put it, in a concurring opinion in Adarand, “In the eyes of the government, we are just one race here. It is American.” In 1996, the Fifth Circuit struck down the use of affirmative action in admissions at the University of Texas—a prelude, many thought, to the same decision on a nationwide basis by the Supreme Court. The justices denied cert in the Texas case.
At that point, though, an unlikely savior of the Michigan program, and all affirmative action, stepped forward—and he happened to be the most famous Wolverine in the country.
More than most ex-presidents, Gerald R. Ford kept his distance from political controversy after leaving office, but he retained a special interest in the workings of his alma mater. And in 1999, the eighty-six-year-old former varsity football star decided to make a public stand in support of affirmative action at the University of Michigan. He wrote an op-ed piece in the New York Times entitled “Inclusive America, Under Attack.” There Ford said, “A pair of lawsuits…would prohibit [Michigan] and other universities from even considering race as one of many factors weighed by admission counselors.” Such a move would condemn “future college students to suffer the cultural and social impoverishment that afflicted my generation.”
On September 15, 1999, a month after the article ran, Ford had dinner with James M. Cannon, one of his former White House aides, in Grand Rapids. (The two men were in town to hear a speech at Ford’s presidential museum by his only appointee to the Supreme Court, John Paul Stevens.) Ford encouraged Cannon to do what he could to help the university in the lawsuit, and the following day Cannon met with Bollinger in Ann Arbor. Cannon had served on the board of visitors of the U.S. Naval Academy, and he knew how important affirmative action had been to the military, especially its officer corps. Cannon had been told many times that the navy did not want ships full of enlisted men, who tended to be heavily minority, being commanded by all-white groups of officers. Affirmative action wasn’t social engineering; it was military necessity—a message that Bollinger wanted to make sure the justices received.
The Michigan tactics in front of the justices came to resemble a political campaign as much as a litigation strategy—which was fitting for a Court that hewed so closely to public opinion on controversial issues. Bollinger and his team knew that the key to winning O’Connor’s vote, and thus the case, was mobilizing establishment support for affirmative action. Civil rights groups, even other universities, would be expected to support Michigan’s position, but the justices had to know that support for affirmative action transcended what was left of the traditional Democratic Party coalition.
Earlier, when the case was before the district court, Bollinger and Marvin Krislov, the university’s general counsel, had persuaded General Motors to submit an amicus curiae, or friend of the court, brief on behalf of the university’s program, focusing on the importance of developing a diverse workforce for Michigan’s most famous corporate citizen. In the Supreme Court, the university recruited sixty-five of the Fortune 500 to sign a bri
ef in support of its affirmative action program, and it would come to be endorsed by most of the biggest and most respected companies in the country, including Boeing, Coca-Cola, General Electric, and Microsoft. As those companies told the justices in their brief, “Today’s global marketplace and the increasing diversity in the American population demand the cross-cultural experience and understanding gained from [an education where students] are exposed to diverse people, ideas, perspectives, and interactions.”
But the military was potentially an even greater ally for the university. Active duty officers could not take a stand on such a controversial issue, but the team that Ford set in motion sought out the next best thing—retired military officers. Krislov contacted Joseph Reeder, a Washington lawyer who had been undersecretary of the army in the Clinton administration, and he began recruiting high-profile retirees to sign a brief. The group eventually included H. Norman Schwarzkopf, John Shalikashvili, Hugh Shelton, William J. Crowe, and two dozen others. To write the military brief, the Michigan team recruited Carter Phillips and his colleague Virginia Seitz, pillars of the Supreme Court bar and thus not at all usual suspects in a civil rights case.
“Based on decades of experience, amici have concluded that a highly qualified, racially diverse officer corps educated and trained to command our nation’s racially diverse enlisted ranks is essential to the military’s ability to fulfill its principal mission to provide national security,” Phillips began his brief. Enlisted military were 21.7 percent African American, while the officer corps was only 8.8 percent black. “The officer corps must continue to be diverse or the cohesiveness essential to the military mission will be critically undermined,” he continued.
Then, in the key section of the brief, Phillips showed that the three major service academies—West Point, Annapolis, and Colorado Springs—all practiced race-conscious affirmative action in admissions. (So did the broader ROTC program.) It wasn’t enough to say that the military should simply recruit more in minority neighborhoods; the armed services had to extend special treatment—affirmative action—to its minority applicants. In other words, “At present, 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.”
The implicit question at the heart of the retired officers’ brief was, if affirmative action was good enough for the service academies, why wasn’t it good enough for the University of Michigan?
And that, precisely, was what Sandra O’Connor was asking herself.
17
THE GREEN BRIEF
The period leading up to the Grutter and Gratz decisions—the early part of 2003—was not an easy time for O’Connor. Her husband John’s condition had continued to deteriorate. He had started to accompany her to work every day, and the justice hired his former secretary to keep an eye on him as he sat on the couch in her office, chatting or reading the newspaper. No one uttered the word Alzheimer’s at the Court, but the nature of John’s problem was increasingly obvious to all.
The justice and her husband would arrive together in time for her exercise class in the morning, stay through their lunch together, and then return home at about two, when she would read briefs. Even then, they never stopped going out at night, to embassy parties, museum openings and the like, just as O’Connor had continued making the rounds fifteen years earlier, when she was weakened by her chemotherapy for breast cancer. In her forthright, determined way, O’Connor did not believe in making concessions to illness, her own or anyone else’s.
O’Connor’s own health was fine, despite a persistent tremor that she had had for years. For her morning exercise class, she added salsa dancing to step aerobics and Pilates. She still loved the work of the Court and always sought more of it. O’Connor never signed on to Rehnquist’s crusade to cut the Court’s docket and thus was always urging her clerks to scour the petitions for cases where she could vote for cert. “Find us some good cases!” she would say.
Still, like many older people, O’Connor resisted changes to her routine, especially the one promised by an impending renovation project at the Court. The building had not been upgraded since it opened in 1935, and Rehnquist had prevailed upon Congress to fund a full overhaul. Each of the justices would have to vacate his or her chambers for a while, and O’Connor was slated to be the first evacuee, in 2004. A pack rat who loved her view and her office, especially now that John was joining her there every day, O’Connor dreaded the prospect of moving to the Siberia of the Court’s second floor.
By now, O’Connor usually had little trouble making up her mind about how to vote. She assigned one clerk to write a bench memo on each case to be argued and then invited the other clerks to write countermemos if they did not agree with their colleague’s recommendation. This was the year that O’Connor cut back to a five-day schedule—there were no more crockpot lunches for her clerks on Saturdays—but she still went over each case with them before oral arguments. She did not agonize. Having laid out her views for her clerks, she had them help her craft some questions for the lawyers for both sides. She didn’t believe in playing devil’s advocate, either. The tilt of her questions at oral argument almost always showed the way she was going to vote.
But Grutter and Gratz were different. They were not easy cases for O’Connor. This time, she did agonize. In the first place, the stakes were enormous. Unlike some high-profile cases before the justices, the Michigan lawsuits had more than symbolic importance. Admissions decisions for thousands of students were at stake, and so, less directly, was all affirmative action in government and private companies. (In contrast, because there were so few actual prosecutions for sodomy, Lawrence v. Texas, which was argued the same year, had fewer immediate, real-world consequences.) In addition, O’Connor’s favorite route through any problem—the middle of the road—wasn’t readily obvious. Either universities could consider the race of their applicants or they couldn’t; even O’Connor would have trouble finessing that kind of choice.
In the weeks leading up to the argument, O’Connor sequestered herself in her office, poring over the briefs of the parties and the amicus briefs as well. Stewing over the Michigan cases at length—a rarity in itself—she would pop out of her office with cryptic and sometimes contradictory observations. She was thinking out loud.
“I need to be consistent with what I said in Croson and Adarand.” This suggested a vote for the plaintiffs. (O’Connor thought that a justice being inconsistent was…unattractive.)
“Race consciousness is a pernicious thing.”
But O’Connor also said:
“What if these schools become all-white? Can we live with that?”
“This isn’t government contracting. This is education. And Lewis said that education was different.”
“Lewis” was Lewis Powell, O’Connor’s mentor on the Court and her predecessor as its swing vote. The key precedent in the area was Powell’s opinion from 1978 in Regents of the University of Californiav. Bakke, where the Court struck down a rigid quota system for minorities at the state medical school at Davis. (In each year’s class, the university reserved sixteen of one hundred seats for minorities.) In that case, no opinion of the Court commanded a majority, but Powell’s came the closest and his view came to be considered the prevailing law on the subject. Powell rejected the quota system at Davis, but he did say that universities could use race as one factor in admissions. His reasoning was somewhat unusual for his time. In the seventies, the main justification offered for affirmative action tended to be that the nation owed a special debt to blacks and other historically disadvantaged groups; because of decades of discrimination, mere equal treatment was not enough to provide them a fair chance.
But Powell justified affirmative action because of what it did for everyone, not just for its immediate beneficiaries. In his view, diversity—a buzzword that came into wide use only after Bakke—helped all students of all races. “The
nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples,” Powell wrote, so “race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file.” (Powell quoted at length from the admissions plan at Harvard College, which stated, in part, that “the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases.”) In the subsequent twenty-five years, Powell’s rationale had become the dominant intellectual justification for affirmative action—not as a handout to the downtrodden but as a net benefit to the society as a whole.
The question in Grutter and Gratz was whether Powell’s ruling should remain on the books. As the justices emerged from behind the red curtain to hear argument on the morning of April 1, 2003, not even O’Connor’s clerks knew how she would vote.
The fact that the cases happened to be argued that month was crucially important. Less than two weeks earlier, on March 20, American and allied forces launched their invasion of Iraq. In this initial period, the war looked like a tremendous success, as American troops cut through Iraqi resistance and stormed toward Baghdad. As a result, in the country and at the Court, the military was held in especially high regard. By the morning of the arguments in Grutter and Gratz, coalition forces had closed to within about forty miles of the Iraqi capital, and there was even more dramatic good news that day for the U.S. military. Army Pfc. Jessica Lynch, who had been kidnapped in Iraq on March 23 and thus become a symbol of American determination, was freed in a raid by Special Operations forces. (Like the war itself, Lynch’s story turned out to be more complicated than it originally seemed.) In short, though, the arguments in Grutter and Gratz took place at a moment when confidence in the American military was soaring.
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