The Nine [120]
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