Cover Story


"ROBED RULERS" Continued...

Issue: "Supreme warning," July 5, 2003

Such inconsistencies and ambiguities were apparent again last week in two other landmark cases involving affirmative action at the University of Michigan. After years of gradually rolling back racial preferences, the court at last appeared ready to strike down affirmative action all together. Instead, Justice O'Connor and four of her colleagues decided that past discrimination justified favorable treatment of minorities in law school admissions, even if that resulted in discrimination against white or Asian students.

"This court has long recognized that 'education is the very foundation of good citizenship,'" Justice O'Connor wrote, quoting from Brown vs. Board of Education. "In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity."

Based on that principle, Justice O'Connor said, public law schools-and, by extension, all other schools, as well-can take race into account when determining whom to admit. At the same time, however, they cannot set rigid quotas or separate admissions tracks for minority students. Indeed, in a separate, 6-3 decision, the court struck down Michigan's undergraduate admissions procedure, which automatically awarded minorities 20 of the 150 points needed for admission. Under that system, merely being black would weigh more heavily than excellent writing skills or demonstrated leadership ability.

In both the law school and undergraduate cases, the principle of affirmative action was upheld by the courts, even if the practicalities were left murky. Lawyers for the two white students who sued the University of Michigan warned that colleges that continued to use race as a factor were merely setting themselves up for further lawsuits. And admissions officials, while publicly cheering the court's decision, were at the same time left to wonder if their procedures would pass muster under the relatively ambiguous ruling.

Conservative court watchers were predictably frustrated by the decisions. "As everybody knew, only one vote counted, and that was Justice O'Connor's," says Roger Pilon, vice president for legal affairs at the Cato Institute in Washington. "Once again, she gave us the kind of confused, middle-of-the-road opinion for which she is so notorious."

Even as legal analysts pore over last week's landmark cases, perhaps the biggest decision of all looms on the horizon. On a closely divided court, where majorities form and dissolve faster than a Hollywood marriage, a single retirement could make an enormous difference in how the Constitution is interpreted. This year, not just one but three justices are said to be eyeing their pensions, and their replacements could determine the direction of the court for a generation.

The most likely retirement would have the least impact in terms of the court's overall direction and philosophy. At age 78, Chief Justice Rehnquist is widely expected to end his 31-year tenure at the peak of judicial power. First appointed by Richard Nixon, he served 14 years as an associate justice before Ronald Reagan elevated him to the position of chief. In the early days, he was often the only conservative vote on key decisions. (In Roe vs. Wade he was one of just two justices who resisted the court's novel interpretation of a constitutional right to privacy.) Indeed, he wrote so many dissenting opinions that no one else would sign that the Lone Ranger doll in his office became his sort of unofficial mascot.

He had to wait a long time for his Tonto. Justice Scalia was appointed in 1986, and for the first time in 14 years the chief justice finally had a consistent ally on the bench. Five years later the addition of Clarence Thomas formed a solid bloc of three conservative votes. With the occasional, tepid support of Justices O'Connor and Anthony Kennedy, Rehnquist & Co. were able to rein in some of the judicial activism that had run amok since the 1960s.

Although pundits on the right sometimes quibble with his decisions or his judicial reasoning-he voted in 2000 to uphold the odious Miranda warning, for instance, because he said the law was already settled-there is little doubt that Chief Justice Rehnquist will leave the Supreme Court a much more conservative place than he found it back in 1972. Had he let his bad back lure him into retirement during the Clinton years, the leftward shift on the bench would have been cataclysmic. But even the most conservative nominee to replace the chief justice will have a hard time moving the court any further to the right: One conservative sitting in for another will simply maintain the status quo, rather than advance any sort of conservative agenda.


You must be a WORLD member to post comments.

    Keep Reading


    Power campaigns

    The GOP is fighting to maintain control of Congress…


    Troubling ties

    Under the Clinton State Department, influence from big money…