The Nine [124]
Even though O’Connor’s clerks wrote the first drafts of her opinions, they still had a distinctive style—or antistyle. She would never indulge in a Kennedyesque flourish like “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” nor would she, like Scalia, assert that an opposing argument was “really more than one should have to bear.” She lined up the facts, usually laid out in some detail, summarized the relevant law, and applied the law to the facts. To O’Connor, the result always mattered more than the rhetoric. She usually began with a crisp statement of the issue at hand. In Grutter, it was: “This case requires us to decide whether the use of race as a factor in student admissions by the University of Michigan Law School is unlawful.”
O’Connor had a clear model for her opinion in Grutter—Powell’s statement in Bakke. She recounted the Michigan law school’s admission procedures in detail, noting the university’s broad commitment to diversity of all kinds, not just “racial and ethnic status.” O’Connor said that Michigan sought a “critical mass” of minority students, but, significantly, there was “no number, percentage, or range of numbers or percentages that constitute critical mass.” Rather, as the lower court in the case held, “the Law School’s program was ‘virtually identical’ to the Harvard admissions program described approvingly by Justice Powell and appended to his Bakke opinion.” O’Connor then summarized Powell’s opinion at length, noting that he “approved the university’s use of race to further only one interest: ‘the attainment of a diverse student body.’ ”
As for whether “diversity” was a “compelling state interest,” O’Connor said she trusted universities to make that judgment on their own, without guidance from the courts, because “universities occupy a special niche in our constitutional tradition.” This observation wasn’t just a gesture of deference to educational institutions but also a way of doing what O’Connor often tried to do, which was limit the reach of the Court’s opinion. She was taking pains to approve affirmative action at universities, but she was not ruling on the practice in other contexts, like employment or contracting.
O’Connor next turned to the subject that dominated the oral argument—the brief from the retired military officers. She quoted Carter Phillips’s brief at length and then, in an extraordinarily rare tribute, simply adopted its words as part of the Court’s opinion: “To fulfill its mission, the military ‘must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting.’ ” Before submitting his brief, Phillips had worried that the Court might observe (correctly) that there were big differences between a military service academy and a law school, and thus find no relevance of one to the other; but O’Connor did just the opposite. Quoting the brief again, she wrote, “We agree that ‘it requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.’ ”
In all, considering the oral argument and O’Connor