The Nine [123]
O’Connor was raising one of the more profound questions in American life. When will race no longer matter? The question captured O’Connor’s ambivalence on the issue of affirmative action—and her practical, solution-oriented turn of mind. To her, racial preferences were a dubious and extreme remedy at best, and she wanted to make sure they were not enshrined for all time. So how much longer would they be needed?
Mahoney answered with an artful segue: “Well, in Bakke itself, Your Honor, there were five votes to allow the University of California, Davis, to use a plan modeled on the Harvard plan. It’s been in effect for about 25 years. It has reaped extraordinary benefits for this country’s educational system.” The answer planted a seed.
Most of the public attention on Grutter and Gratz—the law school and undergraduate cases—treated the two cases as a single controversy, but there were significant differences between the two admissions programs. To narrow the 3,500 law school applicants to a class of 350, Michigan evaluated each candidate individually, guided by a “focus on academic ability coupled with a flexible assessment of applicants’ talents, experiences, and potential to contribute to the learning of those around them.” The undergraduate admissions assessment was more strictly numerical, with each student evaluated on a 150-point scale, with students who received more than 100 points guaranteed admission. Points were awarded for high school grade-point average, standardized test scores, and other non-racial factors, but status as a minority also earned applicants an automatic additional 20 points.
As O’Connor prepared to cast her vote in conference, the difference between the two programs loomed large for her. The undergraduate program was not exactly a quota, as Bush had claimed, but its rigidity—the fact that all “underrepresented” minorities were given the exact same number of points—offended O’Connor. In contrast, the law school procedure looked more like the Harvard program that was praised by Powell in Bakke. It allowed each applicant to be treated as an individual. Once again, she decided to split the difference—to vote for Gratz and against Grutter. (Breyer voted the same way, affirming the growing ideological as well as personal alliance between him and O’Connor.) The others voted more predictably, Rehnquist, Scalia, Kennedy, and Thomas for both plaintiffs; Stevens, Souter, and Ginsburg for the university. The overall votes were 5–4 for the university in Grutter, the law school case; 6–3 for the rejected student in Gratz, the undergraduate case.
Grutter would clearly be the more important case, because it would be the one where the five justices outlined when and how race would be permitted to be considered as a factor in university admissions. (The six-justice majority in Gratz could say only that the undergraduate program did not meet the new Grutter standard.) The central question coming out of the conference was who would write the main opinion.
The decision was up to Stevens, because he was senior among O’Connor, Souter, Ginsburg, and Breyer. (Rehnquist assigned Gratz to himself.) Only a week earlier, Stevens had given the majority opinion in the other big case of the term, Lawrence v. Texas, to Kennedy. Would Stevens really be selfless enough to hand off Grutter as well? He had just turned eighty-three. How many more big opinions could he expect to come his way? Stevens took the weekend to think it over, and, following a conversation with O’Connor, he gave her Grutter to write.
Stevens’s decision took wisdom and selflessness. O’Connor was clearly the shakiest member of the majority in Grutter, and if Stevens had kept the case for himself—as many other justices might have done in similar circumstances—he might ultimately have lost her vote and thus the majority.