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By Root 1159 0

Board of Education in 1954; and even after the Court struck down the doctrine of separate but equal, Kentucky officials, like so many around the nation, avoided complying with Brown and maintained separate schools for black and white students into the 1970s. But when the community finally decided to comply with the law, Louisville faced a familiar problem. Its neighborhoods were so segregated that placing students only in schools close to their homes would scarcely change the racial balance. As a result, the school board eventually came up with a plan in the mideighties that considered a variety of issues in assigning children to schools. Student choice was the major factor, as was the presence of siblings in a school, but race counted as well. Louisville managed enrollment so that each school had no less than 15 percent and no more than 50 percent black students. A group of parents challenged the plan in court, asserting that the school board had no right to use race in school assignments. In a related case, a similar plan in Seattle was attacked as well.

At one level, the two school cases looked easy. As lower courts had noted, the plans comported with the rules O’Connor had set down in the Grutter v. Bollinger case just three years earlier. Like the University of Michigan Law School, the Louisville and Seattle school boards decided that they wanted to foster diversity in their communities. And, like Michigan, the schools included race as one factor among several in selecting students. But the Supreme Court of 2006 and 2007 was not the Supreme Court of 2003. And the lawyers for the Louisville parents put the challenge to the justices in the most direct way. The same month that Alito was confirmed, the parents asked the justices to grant certiorari in their case. To the lawyers in the new case, the question presented was straightforward, and chilling for O’Connor’s legacy: “Should Grutter v. Bollinger…be overturned?” Certiorari was granted.

Like all former justices, of course, O’Connor could only watch what the Court would do to the precedents she had laid down. Her retirement had turned out to be nothing like what she expected. O’Connor had left the Court to be with her husband, but during the long delay, his illness took a cruel toll on John O’Connor. Alzheimer’s disease follows an unpredictable path, and John deteriorated much faster than anyone had expected. By 2007, he no longer knew his wife. He was moved to an assisted-living facility in Phoenix, near the O’Connors’ sons. In a sad irony, Justice O’Connor had not wanted to resign, but had done so to take care of John, and then suddenly there was nothing she could do for him.

O’Connor responded in a characteristic manner—not with self-pity or despair but rather with almost frenzied work and activity. In her first fall away from the Court, she threw herself into the cause that had obsessed her since the Terri Schiavo case. In September 2006, she sponsored, organized, and hosted a conference at Georgetown University Law Center on judicial independence. Many speakers at the conference targeted the Republicans who had been challenging judges on such issues as abortion, criminal sentencing, and the influence of foreign courts throughout the Bush years. O’Connor’s self-confidence was intact. At a planning meeting for the Georgetown event, several people wondered whether the new chief justice might attend. “You just leave John Roberts to me,” O’Connor promised, and the new chief dutifully paid homage.

At the same time O’Connor was planning the judicial independence conference, she agreed to serve as a member of the Iraq Study Group, the panel of eminences, cochaired by James A. Baker III and Lee H. Hamilton, charged with plotting a new course for the war. Even though she had no direct experience in the military or diplomatic matters, O’Connor knew how to ask questions, and she played a key role in examining some of the hundred or so witnesses the ISG consulted over almost six months. O’Connor’s impatience and brisk efficiency became a source of amusement to her nine fellow