A Judicial Role Call on Affirmative Action, Part II: The Conservative Wing

"When does all of this come to an end?" Thus spake Justice Scalia in last week’s oral arguments about the University of Michigan’s affirmative action programs. He offered the strongest criticism of racial diversity as a compelling state interest. Scalia took issue with Michigan’s claim that racial diversity was "compelling" by calling the University’s dual objectives of high admissions standards and racial diversity "a problem of Michigan’s own creation." If their law school really believed that diversity was crucial to their educational mission, they could simply lower their admissions qualifications and thereby increase minority enrollment without using the suspect classification of race to benefit a few at the expense of others.

Scalia was also not persuaded that the percentage range of minorities sought was not a de facto quota, insofar as it suggested a minimum threshold for a "critical mass." Commenting on Ginsburg’s favorable reference to the affirmative action practiced by foreign countries, he suggested that these policies moved them further from "a color-blind society" and closer to "percentage entitlements for the various races." Most importantly, he did not believe that the constitutionality of affirmative action depends on how many are treated unequally on the basis of race. For Scalia, when it comes to constitutional rights, it’s always the minority of one—the individual—who needs the equal protection of the laws.

Chief Justice Rehnquist and Associate Justice Kennedy both smelled a quota behind the points awarded to favored minorities in Michigan’s undergraduate admissions and the "critical mass" target of the law school. Rehnquist was the most persistent in trying to get a clear definition of what the University meant by "underrepresented," "critical mass of," and "meaningful" or "sufficient number of" minorities—to no avail.

Justice Kennedy asked if college administrators should be concerned if racial minorities continued to be "underrepresented" on their campus. This concern for what some have called the "resegregation" of education suggests that while Kennedy finds Michigan’s affirmative action suspect, he also wonders if the Court should offer alternative admissions policies that ensure that racial discrimination not insinuate itself back into college admissions. While suggestive of judicial policy-making, a role the Court is ill equipped to perform, it does indicate a laudable judicial interest in securing equal opportunity for all.

Equality was the theme of Justice Thomas’s only intervention in the extended arguments held for the dual Michigan cases. In the final minutes of the second case, which addressed Jennifer Gratz’s claim that racial preferences at the undergraduate school denied her equal consideration with favored minorities, Thomas first revisited the proposition that Michigan had created its own problem by trying to be racially diverse and what Scalia called a "super-duper law school." Failing to get Michigan’s attorney to concede this "tension," Thomas asked if the diversity rationale applied equally to historically black colleges. The attorney replied, "Yes," explaining that almost all HBCs enrolled "diverse student bodies." With no time remaining in Michigan’s presentation, Thomas could not follow up to clarify the attorney’s misunderstanding of his question.

Throughout the oral arguments, all eyes and ears were turned to Justice O’Connor. With Kennedy sniffing out "disguised quotas," that left O’Connor as the lone swing vote among the conservative justices. This comports with her previous opinions on affirmative action, which have served as the lowest common denominator for the justices least inclined to uphold racial preferences.

When the lawyer for Barbara Grutter intimated that race could not be considered at all, O’Connor was quick to remind him that several court precedents permitted racial classifications. She even asked Theodore Olson, who filed the president’s brief against Michigan’s affirmative action policies, if he agreed with Justice Powell’s opinion in Bakke that race could be used as a "plus" in college admissions. While Olson deftly avoided committing the federal government to this part of Powell’s opinion, O’Connor showed her concern that Court precedent should be upheld. Last, she pressed Michigan’s counsel on the lack of "a fixed time period" for their affirmative action programs. Michigan denied that their programs were permanent, but O’Connor’s questioning implied that a state’s use of race must be narrow in scope and duration.

O’Connor is torn between seeing racial diversity as a "compelling state interest" and wishing to put affirmative action on the course of ultimate extinction. Might she rule that racial diversity could be compelling but only if limited in scope and duration? Aside from losing the votes of Rehnquist, Scalia, Thomas, and Kennedy, this reasoning would not provide enough clarity for colleges like the University of Michigan that already use racial preferences with nary a concern for their eventual elimination. Additional guidelines building upon Court precedent would have to be spelled out by the Court. With the "compelling state interest" question apparently postponed for a future case, it looks like "Bakke today, Bakke tomorrow, Bakkeforever."

We again ask Scalia’s question, "When does all of this come to an end?" For an answer, we can do no better than Frederick Douglass, who when asked how to end slavery, replied, "Stop stealing." When will affirmative action end? As soon as the government, including the courts, gets out of the business of deciding the who, what, where, when, and why of racial classifications—and back into the business of protecting the individual rights of all American citizens regardless of race. Barbara Grutter and Jennifer Gratz have asked Michigan to stop stealing their right to the equal protection of the laws. May it so please the Court.

Lucas E. Morel is assistant professor of politics at Washington and Lee University in Lexington, Virginia and is an adjunct fellow at the Ashbrook Center.