Let the Decisions Begin

Walter Dellinger and Dahlia Lithwick

Let the Decisions Begin

Walter Dellinger and Dahlia Lithwick

Let the Decisions Begin
An email conversation about the news of the day.
June 23 2003 10:48 AM

Walter Dellinger and Dahlia Lithwick

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Hi, Walter:

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It's a pleasure breakfasting with you again. I had Mueslix.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

As I write, it's precisely 10:00 a.m. on decision day, and I confess my heart is pounding. What kind of wacky court-junkie must I be, to have an adrenaline rush over the possibility that the decisions in the Lawrence and Michigan cases are being read at this instant? Again I find myself wishing that proceedings were televised, or at least radio-cast. It would do a lot to cement the legitimacy of the Michigan decisions for the nation to see or hear them being read from the bench; instead they'll just float out of the ether.

Your thoughts about the need for the justices to work as a group rather than as individuals are intriguing. At one level I agree with you—the court should work harder to create clear, unambiguous precedent. They should take seriously their responsibility to set forth crystal-clear rules for the future. But I can't help but wonder if forcing "group" decisions wouldn't lead to even more tactical and strategic behavior on the part of the justices. Wouldn't we prefer that each justice ultimately vote his or her conscience, rather than having them lobby one another, collude, and swap votes? (I know, I know, they do that already, but let me have my illusions.) In any event, this issue dovetails nicely with the problem at the heart of the affirmative action cases: whether groups or individuals are guaranteed rights in this country. How ironic that the high court will decide, as a fractured group of individuals, the future of group rights.

Gratz and Grutter have just now come down, along the exact lines you predicted. In a 5-4 opinion, written by O'Connor, the court upheld the law-school admissions program, but a 6-3 opinion by Rehnquist invalidates the undergraduate program with its rigid "points" system. And yes, the "diversity" rationale for preferences still wins the day, even where it's not clear whether preferring only select minorities creates diversity, or where the benefits of this "diversity" seem to be directed at whites whose lives are somehow enriched by a Benetton campus. What today's cases tell other schools and businesses about crafting future affirmative action programs is not yet clear—maybe the opinions themselves will illuminate us; they're not yet online. It seems that this kind of fragmented outcome merely encourages schools to be even more subversive and disingenuous in their admissions policies. This is Bakke squared. Can this issue really be reduced to "diversity good/quotas bad"? Can 20 points in an undergrad program really be an illegal quota amounting to race discrimination, while ensuring that minority admissions hover around a "critical mass" of around 10 percent each year is not?

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I also heard from early reports that the court placed a 25-year limit on affirmative action programs. What do you think that 25 years signifies? Is that when the last of the sitting justices will be dead and thus needn't worry their heads about this problem anymore?

Evidently the opinions are fragmented and complicated, reinforcing your point that a clear, unambiguous ruling from a coherent group would have been far more helpful than a decision that may well prove to be fuzzier than Bakke—at least in terms of offering future guidance as to the contours of a permissible program. Now the Michigan law school admissions program—the squishy "critical mass" approach—will likely become the law of the land, just as Harvard's system essentially became law after Justice Powell's decision in Bakke.

I'm going to sign off now, just as the opinions are showing up online. But maybe you, I, and our readers can chew on them for a while and reconvene this afternoon.

And since I'm on tenterhooks, tell me your thoughts on a possible retirement at week's end. And what kind of affirmative action test the president will use to (permissibly) promote diversity on the high court.

Yours,
Dahlia