The Nine [125]
The draft by O’Connor’s clerk did not address her last question to Mahoney—about when affirmative action would no longer be needed. O’Connor regarded race consciousness as nothing more than a necessary, or at least permissible, evil. She did not want to see it go on forever. But how could she or anyone else fix an ending date?
After twenty-two years on the Court, many of them as the most important vote, O’Connor had an abundance of self-confidence, so she simply made up a time limit. She told a clerk to write an insert: “It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
The imposition of the time limit was O’Connor at her worst—and her best. To be sure, O’Connor was “legislating from the bench,” in the accusatory term that conservatives like Bush used to describe activist judges. From the vague commands of the Constitution, she was extrapolating not just a legal rule but a deadline as well. To originalists like Scalia and Thomas, this was simple judicial arrogance. And one need not be an originalist, or even a conservative, to have qualms about O’Connor’s proclamation. By what right does an unelected judge impose such detailed rules on a society? And if the practice will be unconstitutional in twenty-five years, why isn’t it illegal now?
“The majority does not and cannot rest its time limitation on any evidence that the gap in credentials between black and white students is shrinking or will be gone in that time frame,” Thomas noted in his dissent. “No one can seriously contend, and the Court does not, that the racial gap in academic credentials will disappear in 25 years. Nor is the Court’s holding that racial discrimination will be unconstitutional in 25 years made contingent on the gap closing in that time.” Moreover, if O’Connor could legislate in this matter on affirmative action, what was to stop her colleagues from establishing codes of behavior in other areas? The answer, of course, was that the only restraints on the judge in such circumstances are his or her conscience and savvy.
And that, ultimately, is the best defense of what O’Connor did. On affirmative action, she picked a result, and reached a compromise, that was broadly acceptable to most Americans. There was no formal limit on her power, but O’Connor’s extraordinary political instincts let her exercise her authority in a moderate way. In some basic, almost primal manner, O’Connor understood that twenty-five more years of racial preferences seemed the right amount of time. It is a scary prospect to consider what other justices in the Court’s history, including some of her contemporaries, would have done with the power that O’Connor arrogated to herself. Her judicial approach was indefensible in theory and impeccable in practice.
The Michigan cases were something of a rout for the conservatives. Kennedy wrote a separate opinion in Grutter saying that he, like Powell in Bakke, approved of the use of race in admissions but that the Michigan law school procedure looked too much like a quota for him to approve. Even Rehnquist avoided taking a stand on whether race could ever be considered. Only two justices, Scalia and Thomas, said directly that any use of race in admissions always violated the Constitution.
Thomas, probably the nation’s most famous beneficiary of affirmative action, wrote a passionate opinion denouncing