Authors: Jeffrey Toobin
O’Connor was careful, as she had to be, to avoid taking any specific positions on issues that might come before the Court, but she was showing considerable prescience—and concern. Even in these first few days after the attack, O’Connor was warning about a coming clash between national security and civil liberties. She had not been impressed by the Ashcroft Justice Department and did not fully trust it to provide the appropriate balance. O’Connor’s prominent reference to “international rules” was no accident. The Bush administration had already made clear its hostility to international law and institutions, and O’Connor was laying down a subtle marker that she, in notable contrast, had a great deal of faith in the worldwide community of judges and lawyers.
The trip to India where she was stranded with Breyer a few weeks earlier was typical of her travel. O’Connor went abroad not, as Kennedy did, principally to indulge in high-flown rhetoric about the rule of law but rather as a problem solver. She had particular interests in juvenile justice and the role of women in law, and she sought out programs on these subjects. It was no coincidence that she found an ally in Breyer, the Court’s leading technocrat. He, too, liked to find practical solutions to problems—how to increase the number of women lawyers, how to provide child care for jurors. Because of their trips, and because they were probably the two least neurotic personalities on the Court, O’Connor and Breyer ultimately became closer than any other pair of justices.
There was an ideological component to O’Connor’s travels, too. She often told the story of an earlier trip to India, when she went to hear an argument before that nation’s highest court, in New Delhi. The case involved a dispute between Hindus and Muslims over government benefits. But as the argument began, O’Connor was surprised to hear the lawyers on both sides citing precedents from the United States Supreme Court in support of their positions. At one point, the lawyers were debating the meaning of an opinion that O’Connor herself had written about the separation of church and state. As O’Connor said in a speech after she returned, “When life or liberty is at stake, the landmark judgments of the Supreme Court of the United States…are studied with as much attention in New Delhi or Strasbourg as they are in Washington, D.C., or the state of Washington, or Springfield, Illinois. This reliance, unfortunately, has not been reciprocal.”
O’Connor’s alienation from her party did not happen overnight, nor did it ever amount to a complete breach. Her rebellion took place mostly on issues relating to the culture wars—like abortion, church-state relations, and gay rights—but she hardly turned into an across-the-board liberal. On criminal cases, including the death penalty, she remained a hard-liner; on federalism and states’ rights, she stayed a firm ally of Rehnquist’s. On one issue, fatefully, for the country and within the Court, O’Connor remained poised on dead center—race.
When O’Connor joined the Court in 1981, civil rights still occupied a major part of the justices’ agenda. One of her early major opinions for the Court, in 1989, set out her views on the subject—in typically opaque fashion.
Richmond, Virginia, passed a local ordinance requiring businesses contracting with the city to set aside 30 percent of their sub-contracts for minority-owned enterprises. After losing a contract for installing stainless steel toilets at the city jail because it lacked the required minority subcontractors, the J. A. Croson Company sued the city, claiming a violation of the Equal Protection Clause. The Court agreed, striking down the set-aside program by a 6–3 vote in
Richmond v. Croson
. O’Connor was assigned to write the opinion.
To do so, O’Connor had to wade into one of the thorniest debates in constitutional law. Five decades earlier, the Roosevelt appointees made sure that the Court vindicated the constitutionality of the New Deal. Henceforth, if Congress or a state legislature approved a statute, the justices weren’t going to interfere with the democratic process. But that approach left a major question unanswered. What if a state passed a law that discriminated against a minority group—as, for example, the Southern states did all the time? What if a state said only whites could vote in primaries or serve on juries? Would the Court let those laws stand, too? The justices answered such questions with the most famous footnote in the Court’s history. In note 4 of
United States v. Carolene Products
, an otherwise minor case from 1938, Justice Harlan Fiske Stone suggested the Court would treat different kinds of laws in different ways. In cases about economic or property rights, the justices would defer to the political process. But when it came to laws that appeared to be targeted at racial minorities or other “discrete and insular minorities,” the Court would apply “more searching judicial scrutiny.”
As later justices interpreted the famous footnote, this meant that if a law appeared to discriminate against blacks, the justices would apply what became known as “strict scrutiny” to see if the law was justified. During the civil rights revolution of the 1960s, the Supreme Court repeatedly applied strict scrutiny to all laws that contained racial classifications—all of Jim Crow—and struck them down. As the Court’s precedents evolved, it became clear that if the justices were going to examine a law with strict scrutiny, that law was invariably doomed.
The major complication to this doctrine of law emerged in the 1970s, when governments and companies started programs that were supposed to help blacks and other minorities. These affirmative action initiatives included explicitly racial classifications. Should the Court apply strict scrutiny and strike down laws that were supposed to
help
blacks in the same way it invalidated laws that were supposed to
hurt
them? Should the law treat “reverse discrimination” against whites the same way it treated old-fashioned discrimination against blacks? Those were the questions that O’Connor had to answer in the
Croson
case. Specifically, should the Court apply strict scrutiny to the set-aside program that explicitly required a degree of racial balance?
To answer, O’Connor did what came naturally to her. She split the difference. For O’Connor, there was no doubt that the Richmond ordinance contained a racial classification that disadvantaged whites. “The Richmond Plan denies certain citizens the opportunity to compete for a fixed percentage of public contracts based solely upon their race,” she wrote. As such, O’Connor decreed, the plan deserved strict scrutiny from the Court: “The standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification.” This in itself was a major development; it was the first time that the Court applied strict scrutiny to a law that was intended to help blacks.
Historically, strict scrutiny of a law or government program meant automatic invalidation. Was O’Connor ruling out all race-conscious programs, even if they were designed to help disadvantaged minorities? No, not exactly, because here was where O’Connor hedged. Richmond had put its set-aside plan in place without any research on whether minority subcontractors had been discriminated against in that city. The law was based solely on the general sense that there had been a history of discrimination in the field. To O’Connor, that was an inadequate justification, but she raised the possibility that a city might make findings that did justify a racially conscious set-aside plan. “Nothing we say today precludes a state or local entity from taking action to rectify the effects of identified discrimination within its jurisdiction,” she wrote. “If the city of Richmond had evidence before it that nonminority contractors were systematically excluding minority businesses from subcontracting opportunities, it could take action to end the discriminatory exclusion.”
So the O’Connor position seemed to be that affirmative action was permissible, but only as redress for identifiable discrimination against specific people. Her standard raised as many questions as it settled. What was systematic discrimination? How could it be identified? Did remedies have to go only to the specific victims? Or could the benefits go to a minority community at large? O’Connor never spelled out the answers to all these uncertainties, but she did stick with the same basic ideas in subsequent cases: some affirmative action was permissible—but not too much.
If O’Connor’s position on racial issues remained something of a mystery, those of her colleagues did not. Four of them—Rehnquist, Scalia, Kennedy, and Thomas—believed in a “color-blind” Constitution; they thought all laws that drew distinctions based on race, including those that purported to help minorities, should be struck down. Four others—Stevens, Souter, Ginsburg, and Breyer—believed that for the most part government and businesses could give advantages to racial minorities, either to redress prior discrimination or to foster the goal of diversity. More than on any other issue, the Court was divided four-to-four-to-one.
No school in the nation made a greater commitment to affirmative action than the University of Michigan, especially in admissions. Given the vast size of its undergraduate college, Michigan used a statistical test, based primarily on grades and SAT results, for most admissions decisions. Because blacks generally scored lower than whites in both categories, a purely numerical admissions process would have resulted in virtually all-white and Asian classes. Under the program that Michigan adopted, the boosts for minority applicants could be substantial. A minority applicant with a 3.5 grade-point average and a combined SAT score of 1200 would automatically be accepted, and a white candidate with the same scores would likely be rejected. The law school admission process, which involved fewer students, entailed more individualized assessments of applicants but still gave significant advantages to blacks. One year, among applicants with grade-point averages between 3.25 and 3.49 and LSAT scores between 156 and 158, one of fifty-one whites was admitted, and ten of ten blacks were.
Conservative public interest groups like the Center for Individual Rights—a civil rights counterpart to Jay Sekulow’s religion-based outfit—had been scouring the country to find the right places to challenge racial preferences. The stark numbers at Michigan made the school an inviting target, as did the availability of sympathetic plaintiffs.
Barbara Grutter was one of nine children of a minister in the Calvinist Christian Reformed Church. When her own children were small, she ran a medical consulting business out of her house, and eventually decided to apply to the University of Michigan Law School, which had a joint program in her field, health care management, and law. She had a 3.8 grade-point average from her under-graduate days at Michigan State and scored 161 on the LSAT. A black student with those grades and scores would certainly have been admitted to the law school, but Grutter was placed on the waiting list and then rejected. Jennifer Gratz, also white, was similarly well qualified for admission to Michigan’s undergraduate program and was also placed on the waiting list and then rejected. Both women filed their lawsuits in late 1997, and then began their long march through the federal trial and appellate courts.
From the start, both cases—
Grutter v. Bollinger
and
Gratz v. Bollinger
—were causes célèbres. (Lee C. Bollinger was then president of the University of Michigan.) By some reckonings, the Court was moving in the direction of striking down all racial preferences, and the Michigan cases appeared to be nearly ideal vehicles for supporting that position. O’Connor herself seemed to be inching rightward on the issue, most notably in her opinion for the Court in
Adarand Constructors, Inc. v. Pena
, in 1995. There she reversed a lower court ruling that upheld a federal affirmative action program for minority contractors, but she saw no reason to rule on every affirmative action program in the context of that single case; still, the judicial momentum, as well as the rhetorical energy, seemed to belong to the opponents of such programs. As Scalia put it, in a concurring opinion in
Adarand
, “In the eyes of the government, we are just one race here. It is American.” In 1996, the Fifth Circuit struck down the use of affirmative action in admissions at the University of Texas—a prelude, many thought, to the same decision on a nationwide basis by the Supreme Court. The justices denied cert in the Texas case.
At that point, though, an unlikely savior of the Michigan program, and all affirmative action, stepped forward—and he happened to be the most famous Wolverine in the country.
More than most ex-presidents, Gerald R. Ford kept his distance from political controversy after leaving office, but he retained a special interest in the workings of his alma mater. And in 1999, the eighty-six-year-old former varsity football star decided to make a public stand in support of affirmative action at the University of Michigan. He wrote an op-ed piece in the
New York Times
entitled “Inclusive America, Under Attack.” There Ford said, “A pair of lawsuits…would prohibit [Michigan] and other universities from even considering race as one of many factors weighed by admission counselors.” Such a move would condemn “future college students to suffer the cultural and social impoverishment that afflicted my generation.”
On September 15, 1999, a month after the article ran, Ford had dinner with James M. Cannon, one of his former White House aides, in Grand Rapids. (The two men were in town to hear a speech at Ford’s presidential museum by his only appointee to the Supreme Court, John Paul Stevens.) Ford encouraged Cannon to do what he could to help the university in the lawsuit, and the following day Cannon met with Bollinger in Ann Arbor. Cannon had served on the board of visitors of the U.S. Naval Academy, and he knew how important affirmative action had been to the military, especially its officer corps. Cannon had been told many times that the navy did not want ships full of enlisted men, who tended to be heavily minority, being commanded by all-white groups of officers. Affirmative action wasn’t social engineering; it was military necessity—a message that Bollinger wanted to make sure the justices received.