Several of the links in this piece launch audio clips from Tuesday's oral arguments.
O'Connor reveals her own biggest concern in these cases when she asks whether there is any end to the program or whether the racial preferences will continue indefinitely. And Justice John Paul Stevens inquires whether affirmative action doesn't just engender more racial hostility in the long run. Mahoney replies that the overwhelming number of students at Harvard and Michigan still support it, and Scalia informs her that this is because " they're in already." If she wants to see racial resentment, ask high-school seniors.
Finally, and with two minutes left to her argument, Scalia asks Mahoney the following "question" (that's really a lecture), and, amid much laughter, Chief Justice William Rehnquist gives her permission to treat it as a statement.
Gratz, the second case, proceeds along similar lines as Grutter, except the undergrad policy, with its points system, smells somewhat fishier. John Payton—who subs in for Mahoney in the university's defense—is a little more inclined toward flowery rhetoric about the wonders of educational diversity. Kolbo, arguing again for the rejected white applicants, tussles with the justices for a while over whether one of the plaintiffs in the suit even has standing to sue. But mostly he argues that affirmative action policies give administrators too much discretion to decide what constitutes a minority, who is a minority, and what makes for a diverse student body. Stevens and Breyer point out that such a lack of standards may be upsetting, but it's not, according to Breyer, "constitutionally relevant." And Ginsburg notes the importance of this case: It would affect private schools as much as public ones.
Ted Olson has a slightly easier time in this round, mostly because he's not up against the dreaded "green" brief. He argues that affirmative action simply perpetuates stigma, and when Souter says that the point of affirmative action is to have enough minorities in a class to show that "there is no correlation between race and points of view," Olson argues that it's nuts to give minorities preferences to prove that minorities don't have monolithic views.
John Payton speaks finally for the university. He makes a long, moving speech about how outrageously segregated the city of Detroit and state of Michigan are and how only campus encounters between students can undo this damage. He scuffles with Rehnquist about how many students exactly make up a "critical mass," and Kennedy basically puts his vote on the table with the comment that this program looks like a " disguised quota." After more discussion about what exact number constitutes an amorphous "critical mass" and more on why Michigan can't just lower its high standards, Justice Clarence Thomas rocks the house by asking a question: "Do you think that your admissions standards overall at least provide some headwind to the efforts that you're taking about?" (It's a trick! If Payton says it's working, it's unconstitutional; if he says it's not, then it's irrelevant.) Payton doesn't get the chance to answer properly before his time runs out. The case is submitted until a decision comes out in June.
For what it's worth, and to the extent it's all going to come down to O'Connor, she doesn't sound like a woman willing to completely do away with using race as at least a factor in admissions decisions. In fact, even Kennedy sounds like he might still be on the fence himself, at least as far as a sweeping decimation of all race-conscious policies is concerned.
All this makes for a long morning of head-scratching. Everyone seems to agree that the racial divisions in this country are a terrible problem, and almost everyone agrees that they need to be handled via subterfuge: The affirmative action camp is for "critical masses" that look like quotas and for "diversity" that may not bring about diversity. The anti-affirmative action camp is for pretending that other remedies work when it's clear that you can't fix race problems by ignoring race. These are not really legal questions at heart; they are almost insoluble social and moral ones. Take heart in the fact that the court at least respected us enough today to address them as such.
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