On Tuesday, the Supreme Court heard arguments in two lawsuits challenging affirmative-action programs at the University of Michigan. Even in wartime, emotions on this issue run high. The Court saw as many demonstrators on Tuesday as it had in the days of Bush v. Gore. The justices vigorously pressed attorneys for both sides, but all eyes were on Sandra Day O’Connor, who likely holds the deciding vote.
Sandra Day O’Connor does not favor sweeping decisions, or ringing defenses of principle. She much prefers to decide cases narrowly and pragmatically, splitting the difference between warring camps, and allowing public debate to progress, relatively unhindered by the Court. This time, however, on whatever side she finally comes down, Justice O’Connor may be forced to give her assent to a far-reaching and controversial decision.
Justice O’Connor might seem to have a way out of her dilemma. There are two fundamental issues at stake in these affirmative action cases. On the one hand, we have the ultimate question: Is diversity a “compelling state interest,” for which sake it is legitimate to suspend the normal constitutional prohibitions against racial discrimination? On the other hand, there is a secondary question: Is the University of Michigan’s way of achieving diversity “narrowly tailored” to achieve that goal.
It might appear as though Justice O’Connor could evade the larger question of diversity, by simply disallowing the University of Michigan’s affirmative action programs on grounds that they are badly implemented (and therefore amount to de facto quotas). That would seem to force colleges and universities to restructure their affirmative action programs to give somewhat less preference to minorities, without fundamentally challenging the entire system of preferential treatment. All in all, that would be a classic O’Connor decision. But the matter is not so simple.
True, it was evident in her questions on Tuesday that Justice O’Connor might like to move in the direction of such a compromise. She challenged a lawyer for the plaintiffs when he argued that the Constitution bans all preferential treatment by race. O’Connor pointed to clear precedents (for which she herself is in many ways responsible) that allow race to be taken into account in very specific circumstances — say, to alleviate a history of discrimination in a particular business.
Nonetheless, there are important factors in the Michigan case that might push Justice O’Connor away from an attempt to split the difference between the two sides. For one thing, the famous Bakke case already did “split the difference” by banning quotas, while declaring that race can only be treated as one “plus factor” among many in university admissions. Clearly, however, colleges and universities have long disregarded that injunction, merely using the “plus factor” claim as a cover for what is in fact a two track admissions system. So the first problem with a limited decision is that it would not do much to pare back affirmative action. Colleges and universities would simply find ways to disguise or recalculate their quotas, just as they did after Bakke.
If that were the only problem, Justice O’Connor might still prefer a narrow decision to a sweeping one. Yet there is a deeper dilemma. It might seem that, by merely revising the mechanism for achieving diversity, Justice O’Connor would be tampering as little as possible with the status quo. In fact, however, such a decision would be revolutionary. That is because, although it is not generally recognized, “diversity” has no clear legal or constitutional status at present. To understand why, we need to go back to the famous Bakke decision.
In Bakke, the Court was divided in much the same way it is now. Four justices were willing to endorse the University of California’s racial quota system, four were opposed to taking race into account, and one justice, Lewis Powell, was caught in the middle. It was Powell who came up with the idea of justifying affirmative action, not as a temporary device for remedying historic discrimination, but as a way of achieving the alleged educational good of “diversity.” But Powell’s odd opinion was never joined, except in the slightest degree, by the other justices. So “diversity” still has no clear constitutional status.
That is why Sandra Day O’Connor is in a bit of a trap. She may not be able to strike down the University of Michigan’s method of achieving diversity, without simultaneously granting full constitutional status to diversity itself. And more than the media has acknowledged, such a finding would actually be a radical innovation. So Justice O’Connor may be forced into a choice between formally enshrining an illiberal concept of group rights (diversity) in our constitution, or striking down nearly all preference programs.
The Bush administration has struggled with this problem. Solicitor General Olson and his allies within the Department of Justice pushed for a brief that would clearly oppose diversity as grounds for racial preference. Others in the administration forced a compromise, in which the government took no stand on the constitutionality of diversity, but strongly attacked the actual practice of affirmative action at Michigan as extreme and unnecessary. Unlike the administration, however, Justice O’Connor may be unable to sidestep the diversity issue.
Tuesday’s hearing featured considerable jousting between and among the lawyers and the justices (of which more below). But in a way, the most interesting moments were Justice O’Connor’s simple questions. O’Connor pressed Solicitor General Olson to clarify the government’s murky stand on the diversity issue. Technically, General Olson hewed to the administration’s formal position — he refused to categorically rule out the possibility that diversity may be a compelling government interest in rare and specific cases. (For example, a medical study that takes racial differences between patients into account.) For the most part, however, Olson was opposed to elevating the goal of diversity into a compelling government interest sufficient to justify racial discrimination. O’Connor seems to know that she will be forced to decide the diversity issue one way or another, and she is looking to draw out the government’s rather enigmatic position on the issue.
O’Connor also pressed the University of Michigan’s attorneys on the question of a possible end point for affirmative action. As lawyers for the plaintiffs were at pains to point out, it is virtually unheard of for a “compelling interest” that forces the government to suspend its normal guarantees of equal protection to be anything other than narrow and temporary. But “diversity” is a potentially open ended and permanent state interest. Justice O’Connor, of course, is very reluctant to endorse radical innovations with potentially huge consequences that can never be taken back. That is what a formal endorsement of “diversity” would represent.
Properly understood, diversity is actually a sort of counter-principle to classic liberal notions of individual rights. (For more on this, see Peter Wood’s superb new book.) Diversity is nothing, if not a right that inheres in groups. So to insert diversity into the Constitution is to set off a kind of slow motion cultural civil war that could eventually encroach on our entire political system. For example, once diversity gains formal constitutional status, why not have mechanisms that impose diversity on jury selection, or on the selection of federal policy makers?
In Tuesday’s arguments, Justice Ginsberg suggested that we might take a leaf from Europe and Canada, which have already gone far toward institutionalizing racial, ethnic, and gender preferences. But in Canada, Europe, and Asia, we have also seen proposals floated that would effectively impose quotas for, say, women, on elected legislatures. Once diversity becomes constitutional, its advocates will one day press to force de facto quotas even on our electoral system.
So Justice O’Connor is being forced, against her inclinations, to make a sweeping, historic, and controversial decision. Either she must finally remove the ambiguity of Bakke, and formally enshrine diversity as a compelling state interest capable of suspending the Constitution’s guarantees of equal protection, or she must overturn the entire system of racial and ethnic preferences — at least in higher education, and maybe beyond.
Given the current division on the Court, Justice O’Connor’s questions were the main event. But there were many other interesting lines of questioning at Tuesday’s hearing. For one thing, the defenders of diversity seemed to backtrack significantly on its meaning. Diversity is usually treated as a feature of groups. Supposedly, diversity is good because African Americans or Hispanics contribute unique perspectives to classroom discussion. Affirmative action has tended to elevate group identity to a commanding position on campus — to the point where those who don’t want to play along with the approved position for their own identity group can be ostracized as disloyal.
Yet in Tuesday’s hearing, the defenders of diversity switched gears. Perhaps aware that they are vulnerable on the issue of group versus individual identity, Michigan’s attorneys (and some of the liberal justices) made the puzzling argument that diversity is good because it makes us think of everyone as an individual. According to this argument, if a black student happens to be a conservative Republican, he should be treated preferentially, precisely because white students need to learn that blacks are individuals too. Of course, Justice Scalia pointed out the futility of attempting to teach individuality through a system of group preferences.
The real effects of affirmative action, of course, cut against the primacy of individual identity. If diversity squeaks by and is approved by this Court, it will have done so by offering bogus, pseudo-liberal justifications for a practice that is anything but liberal. The real effects of diversity on campus are to reinforce group identity and put pressure on individual outliers.
Justice Stevens raised a similar objection to diversity. (Interesting, because Justice Stevens was opposed to affirmative action in Bakke, but has since moved Left.) Justice Stevens asked if the real effect of affirmative action was to create bitterness between groups — the sort of bitterness that encourages discrimination and perpetually puts off our ability to eliminate affirmative action itself. The lawyers for the University of Michigan, as might be expected, had no good answer.
But the most striking and heated exchanges in Tuesday’s session were over the question of whether the University of Michigan’s “goals” constitute a de facto quota system. Every time the lawyers for Michigan used a bogus synonym for quota, Justice Scalia would press them to define the word. Scalia succeeded in making it obvious that concepts like “sufficient” minorities, or a “critical mass” of minorities, can’t help by imply a numerical quota. Justice Souter tried to rescue Michigan here by differentiating between a fixed numerical quota and a “gray area.” But as Justice Scalia pointed out, a range of “eight to twelve percent” presents just as fixed a threshold as ten percent.
All things considered, it was quite a session. Yet, in the end, the verbal pyrotechnics between the justices on both sides of this issue didn’t mean as much as Justice O’Connor’s straightforward concerns about the scope and practical consequences of the historic decision she will soon be forced to make. What, then, will actually happen?
I see three possibilities. Justice O’Connor may bite the bullet, refuse to endorse “diversity,” and effectively ban preferences in college admissions. This will happen if, and only if, the Justice has a clear sense of the potential future consequences of granting an ever-expanding and illiberal concept like diversity constitutional status.
Or, Justice O’Connor might try to “split the difference,” by endorsing diversity, but writing strict conditions for preferences that will make a return to de facto quotas very difficult. It is hard to believe, however, that she will be able to find a way of doing so that colleges will not simply circumvent.
Finally, however, Justice O’Connor, perhaps in conjunction with Justice Kennedy, might repeat the move of her mentor, Justice Powell, in the Bakke case. Justice O’Connor may decide to permit preferential college admissions based on some new third principle — one that is neither diversity nor classic equal protection clause jurisprudence. That would be the ultimate way to “split the difference.” The creation of a novel and more narrow justification for affirmative action might avoid the dangerous long term consequences of formally endorsing the diversity concept. A three way split, however, as in the Bakke case, would leave the issue of affirmative action in continued limbo, with who knows what consequences down the road. Come to think of it, Justice O’Connor may consider that to be just the sort of outcome she wants.
— Stanley Kurtz is a research fellow at the Hoover Institution at Stanford University.