In December 1996, Sandra Day O’Connor came to the University of Michigan to receive an honorary degree. Walking through the basement of the law school with an associate dean, she saw that the walls were plastered with notices from various race- and gender-based groups. “She was appalled,” recalled the dean, Kent Syverud. “Is this what diversity is going to be all about?” she asked him. She disliked victimhood and identity politics, which she saw as undermining her ideal of an all-inclusive civil society. Syverud, who had once been an O’Connor law clerk and is now president of Syracuse University, characterized O’Connor’s views on racial remedies as “Reparations? Terrible! Victim-based solutions? Ugh.”
O’Connor, the first woman Supreme Court justice, might have seemed like a natural candidate to vote against racial preferences in university admissions. Indeed, as a Goldwater Republican appointed to the Court by Ronald Reagan, she wrote the majority opinion striking down quota-like “set asides” for minority contractors by the city of Richmond in the Croson case in 1989, and for federal minority contractors in the Adarand case in 1995. But she cast the decisive vote to uphold affirmative action in higher education in a 2003 case, Grutter v. Bollinger, a precedent that still stands. (By coincidence, the case involved the University of Michigan Law School.) As another one of her former law clerks, Andrew McBride, put it to me, “She didn’t like affirmative action, though she was the one to save it.”
With O’Connor long gone from the bench (she retired in 2006) and a conservative majority solidifying on the Court, the conventional wisdom has become that racial preference is doomed in higher education. But O’Connor’s struggles over this difficult issue illuminate why it will not be easy to stop the consideration of race in admissions at publicly funded institutions.
O’Connor was herself the beneficiary of affirmative action. Once, during the Court’s weekly private conference, when Justice Antonin Scalia was declaiming against racial and gender preference, O’Connor drily remarked, “Why Nino, how do you think I got my job?” O’Connor was a realist and pragmatist, in life and in her jurisprudence. She knew what it was like to be the victim of discrimination—even though she graduated near the top of her class at Stanford Law in 1952, she could not persuade a single California law firm to consider her for a lawyer’s job. As a justice hiring law clerks, O’Connor in theory welcomed diversity of all kinds. She hired men and women in roughly equal numbers, but over her 25 years on the Court, only about 3 percent of her law clerks were African American. As a practical matter, very few black students were among the law-review editors at top law schools, who generally make up the Supreme Court clerk hiring pool.
O’Connor did not embrace her role as the decisive vote on affirmative action in the Grutter case. She knew she was alone in the middle, with the four liberals (Justices Stephen Breyer, David Souter, Ruth Bader Ginsburg, and John Paul Stevens) on one side in favor of affirmative action, and the conservatives (Chief Justice William Rehnquist and Justices Scalia and Clarence Thomas) dead set against. She understood that Justice Anthony Kennedy, the Court’s other swing vote, would go with the conservatives. Justin Nelson, one of O’Connor’s clerks, recalled, “She pulled me over and said, ‘This is going to come down to me.’”
The Michigan case “loomed” over O’Connor’s chambers, recalled another clerk, Emily Henn. Dozens of legal briefs in the case were stacked high in her office. One included a chart showing the impact on California public universities after a state referendum abolished affirmative action. “That’s what got to her,” said a third law clerk, Cristina Rodriguez. “It showed a steep drop-off in minorities. She couldn’t accept the effect on elite institutions.” O’Connor believed that law schools were training grounds for future leaders. (More than half of U.S. senators are lawyers.) If African Americans had to compete solely on tests scores, few would be in top law schools. O’Connor was also moved by a friend-of-the-court brief signed by a raft of top military officers, including General Colin Powell and a number of former chairmen of the Joint Chiefs of Staff. It argued that affirmative action was necessary to keep a racial gap from yawning in the ranks. The military—indeed, all major institutions—needed to look like society at large, or so O’Connor was convinced.
She was also influenced by an argument made by Kent Syverud. As an expert witness in the case, he argued that a “critical mass” was necessary to ensure that minorities did not feel isolated or tokenized, and that nonminority students heard their diverse voices.
But O’Connor worried that affirmative action, which had succeeded at increasing the numbers of minorities at top schools, had hardly put an end to identity politics. Minorities clamored for their own identity-group housing and ethnic studies. The spirit of togetherness was difficult to implant on campuses where students sometimes self-segregated at tables in the dining hall. O’Connor was all for the inclusion of different groups, but she wanted them to meld into one civic society, bound by shared values. O’Connor was unhappy that at her beloved Stanford, the mandatory course Western Civilization had been eliminated as “patriarchal” and “hegemonic,” although she was careful not to be vocal about her complaints.
In the Michigan case, O’Connor registered her ambivalence about racial preferences by suggesting a time limit. In her opinion for the Court, she wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary.”
Not quite 14 years later, she told me, “That may have been a misjudgment.” Shortly after she retired from the Court, her friend Eric Motley, a senior official at the Aspen Institute who is African American, asked her to predict how long affirmative action would be necessary. She answered candidly, “There’s no timetable. You just don’t know.”
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