Consider her treatment of "diversity." For a governmental use of race to pass muster with the court, it must be "narrowly tailored" to achieve a "compelling interest." Twenty-five years ago in the landmark Bakke case--the last time the court addressed affirmative action in higher education--Justice Lewis Powell stated that diversity sufficed as just such a compelling interest.
But Justice Powell said that in an opinion joined by no other justices, and though higher educators have regarded it with the same respect as a majority opinion, its status with the present court was unknown--until Monday, when Justice O'Connor endorsed it.
Justice O'Connor observes there is "some language" in "our affirmative action cases since Bakke" that "might be read to suggest that remedying past discrimination is the only permissible justification for race-based governmental action." But rather than engage the merits of the arguments expressed in that "language," most of which Justice O'Connor herself wrote, she concludes: "We have never held that the only governmental use of race that can survive [our analysis] is remedying past discrimination. . . . Today we hold that the law school has a compelling interest in attaining a diverse student body."
Justice O'Connor defers to "the law school's educational judgment that such diversity is essential to its educational mission." She ignores the debate over the rationale that has left even some defenders of Michigan convinced, as the Wall Street Journal reported last week, of its flaws and "weak social science." Nor does she examine why, as one black Michigan student told the Journal, diversity has become "offensive to students of color. [It is] as if we're just in college to enrich the education of white students."
In her discussion of "narrow tailoring," Justice O'Connor emphasizes the unconstitutionality of a "mechanical, predetermined diversity 'bonus' based on race or ethnicity"--precisely the infirmity found by a six-justice majority in the undergraduate case. She also says a quota would be unconstitutional. Yet she accepts the law school's effort to enroll a "critical mass" of minorities (blacks, Hispanics, and American Indians) without engaging the powerful point made by Chief Justice William Rehnquist in dissent--that the school actually accords "substantially different treatment" to the three minority groups.
Indeed, Chief Justice Rehnquist makes a strong prima facie for discrimination against Hispanic applicants. "In 2000, 12 Hispanics who scored between a 159-160 on the LSAT and earned a GPA of 3.00 or higher applied for admission, and only two were admitted. . . . Meanwhile, 12 African-Americans in the same range of qualifications applied for admission, and all 12 were admitted." Rehnquist writes that Michigan never explained why Hispanics "should have their admission capped out." Nor does Justice O'Connor. And this is a case fundamentally about the Fourteenth Amendment's equal protection guarantee.
Justice O'Connor rejects the Bush administration's argument that narrow tailoring requires "exhaustion of every conceivable race-neutral alternative" before race actually is used. Yet "we are mindful," she writes, quoting a 1984 case, that "[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race." Recognizing the potential danger of any racial classification, she says that even a lawful policy, like the law school's, "must have a logical end point."
How to get to that point? Justice O'Connor points to states (Texas, Florida and California) that pursue race-neutral alternatives. But she doesn't explain why a state would want to copy those states if, thanks to her opinion, it still can use race in admissions.
Even so, Justice O'Connor is sure about that end point. It has been 25 years since Bakke, and "we expect that 25 years from now, the use of racial preferences will no longer be necessary." The five justices who expect that won't be on the court in 25 years, and it is anyone's guess how that court might view an "end-point" case. But, surely, it is odd that the Constitution means one thing in 2003 and could mean another in 2028--that it permits discrimination today but not, or might not, tomorrow.
Terry Eastland is publisher of The Weekly Standard.