The Nine [121]
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