Walter Dellinger and Dahlia Lithwick
I confess to being somewhat surprised by your latest post, the love song to Sandra Day Prufrock. ("Do I dare, do I dare, do I dare uphold a program that clearly discriminates on the basis of race?")
Usually you and I agree on so much more than we disagree on. But today it seems we could not disagree more. Because I think O'Connor gets it wrong—wronger than Justice Powell in Bakke wrong—because she's had the benefit of 25 years to think about it. Like you, I am delighted with the outcome in Grutter,the Michigan law-school case. Like you, I was terrified that today might have seen a thick dark cloud blot out all the good that affirmative action programs have achieved over the decades.
But intellectual honesty doesn't let me accept O'Connor's basic ends-justifies-the-means approach to upholding the principle. And so much of your analysis today suggests that this is what's best about O'Connor's opinion: She got it morally right, even where she's logically wrong. As you put it: Powell's opinion in Bakke is riddled with logical flaws but is nevertheless "wise." Why? Because we need affirmative action. And so even if a program singles out only three traditionally underrepresented races, and offers them special advantages under the fiction of fostering "educational diversity," we'll laud it because the alternative— doing away with such programs—is intolerable to us. But then, let's be honest. Justice Thomas is correct in his dissent when he argues that "diversity" means nothing and can't be the cornerstone of affirmative action jurisprudence. And Justice Scalia is right when he says (or rather bellows …) that today's decisions in Gratz and Grutter will do nothing but further cloud and confuse the affirmative action debate for years to come.
Where do I even start? With O'Connor's odd emphasis on the benefits of "diversity" to "non-minority students"? That's crazy. Schools are not petting zoos—we don't fill them with lots of varied and interesting creatures merely as an end in itself. The diversity rationale has always been the weakest link in the affirmative action jurisprudence. As the dissenters point out, there are a lot of more satisfying ways to create a diverse class and foster tolerance and understanding than through an affirmative action program that uses race as a determinative factor.
The fact that O'Connor doesn't ever get to the Marks question (of whether Powell's opinion in Bakke is even the holding of the case) is just maddening, as is her use of all the catchwords: "individualized consideration" and "flexible" and "non-mechanical" all simply mean that when programs give minorities a boost informally rather than formally—with a wink rather than out in the open—those programs are legitimate. Grutter and Gratz simply stand for the jurisprudential proposition that numbers are per se bad, whereas words (like "critical mass") are per se permissible.
Don't mistake me. I remain in favor of affirmative action—but not because I think some "critical mass" of three particular minorities so enriched my law-school education that the Equal Protection clause ought to have been violated to achieve it. No, I'm for affirmative action for most of the reasons Justice Powell rejected in Bakke and Justice O'Connor rejected today: I think we have past wrongs to remedy in this country, and I believe it's critical that certain minorities achieve leadership roles in our most exalted institutions. (This was, I believe, the cornerstone of the military brief about which everyone got so excited.) But O'Connor's opinion still fails to answer the Hopwood question: If "diversity" is so hellfire important, why not just take more cellists and croupiers or at least more Scots and Canadians? If we only mean racial diversity when we say diversity (or what Justice Thomas' dissent calls "aesthetic diversity"), then let's at least say so.
Justice Thomas' dissent, by the way, makes it clear why his view of race-neutrality is terrifying. He quotes Frederick Douglass, speaking on what Americans should do with blacks: "Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall."
You asked earlier about baby Coby's continued beauty (oh, yes—he's spectacular, combining the fiery passion of a Scalia with the devilish good looks of a Souter) and also whether motherhood has softened my viper's tongue.
Dahlia Lithwick writes about the courts and the law for Slate.