Several of the links in this piece launch audio clips from Tuesday's oral arguments.
If this kind of wanton openness and transparency on the part of the Supreme Court continues, I'll be out of a job. But the court's decision to permit live audio broadcasts of today's oral argument in two affirmative action cases from Michigan has welcomed the entire nation into the courtroom for only the second time in history. (Bush v. Gore was the first.) I urge you to help put me out of a job by listening to the broadcast on C-SPAN, reading the transcripts on the Detroit Free Press (click here for the second argument), and generally experiencing that infrequent, warm fuzzy glow that can be achieved only through participatory democracy.
Argument in the two cases, Grutter v. Bollinger and Gratz & Hamacher v. Bollinger, takes place over two consecutive hours this morning. Both suits were filed by rejected white applicants to University of Michigan schools. Grutter is a challenge to the affirmative action policy at the law school, and Gratz involves the policy at the undergraduate school. A divided 6th Circuit Court of Appeals upheld the law school policy as constitutionally permissible and never quite got around to deciding the undergraduate case. The undergraduate case is the tougher one since their admission policy automatically awards 20 points (out of a possible 150) to applicants who are black, Hispanic, or American-Indian while the law school uses a less formal "critical mass" test to admit what it deems a racially diverse class each year.
One of the most striking aspects of today's arguments was how very untechnical and legalistic the discussion actually was. Constitutional law professors expecting the court to turn the emotional and moral issues into theoretical nitpicking over the appropriate level of constitutional scrutiny or the legal significance of Justice Lewis Powell's inscrutable opinion in that last major university affirmative action case— Bakke v. Regents of University of California—would have been disappointed. The court showed less interest in arcane three-part tests than in fundamental fairness questions: How can racial equality be imposed on the backs of whites? Is there any race-neutral policy that could adequately address the problem of racial disparity in this country? Are we supposed to allow racial preferences to continue indefinitely? How can we fix our racial problems without taking race into account?
Every one of the justices proved today that the court is neither out of touch nor inclined to hide behind jargon; their discussion was closer to the one you're having around your dinner table tonight. While some of the oral advocates seemed surprised at the twists and turns of the argument, the morning proved—in more than one way—that this court is capable of "getting it" when it really matters.
First, in Grutter, Kirk Kolbo argues for Barbara Grutter, the white applicant refused entry to Michigan Law School despite a 3.8 GPA and an LSAT score in the 86th percentile. Not surprisingly, Kolbo engages in a skirmish almost immediately with Sandra Day O'Connor—widely viewed as the swing vote in these cases—when she asks how a school with a very limited number of spots can make hard choices about admissions and not use race as a relevant factor. Kolbo—opposing any race-conscious decision-making at all—replies that other factors don't violate the 14th Amendment's guarantee to equal protection under the law for all races. O'Connor points out that "the Supreme Court has upheld using race in certain contexts ... you're speaking in absolutes, and it isn't like that."
Justice Ruth Bader Ginsburg then stages what can only be characterized as a hijacking by amicus, invoking a green friend-of-the-court brief filed on behalf of retired military officers stating that (as paraphrased by Ginsburg) "to have an officer corps that includes minority members in any number, there is no way to do it other than to give ... a plus for race." When Kolbo says he cannot take that contention as a matter of fact, Justice David Souter almost loses his mind: "Are you serious that you think there is a serious question about that? That we cannot take that green brief as a representation of fact?" The court goes on to argue about the factual accuracy, relevance, and implications of gutting affirmative action in military academies, none of which sounds like a very good idea in wartime.
Justice Stephen Breyer jumps in to make his first of two pitches for upholding affirmative action based not on Powell's "diversity" rationale but on the need for minority leadership. Listen to this piece of real-world eloquence. Kolbo argues that the 14th Amendment's equal protection clause isn't violated by the sorts of minority recruiting undertaken by military academies but is violated by Michigan's alleged quota system.
Solicitor General Ted Olson then takes a few minutes to condemn the Michigan plan. As a result of the weird split-the-difference approach taken by the Bush administration, he has to both attack the Michigan approach and defend efforts to promote racial equality in the abstract. Again he has to fend off an assault from the military amicus brief (now being cited as "the Carter Phillips brief," if you please), and he sounds greener than the brief by the end of it. When asked by Ginsburg whether he accepts that the military academies all have race-preference programs, his response is that the Coast Guard does not.
Here is where Olson describes the Michigan plan as a "thinly disguised quota" (Tomorrow's headlines today!) and makes the nice point that Michigan is wrongly "using stereotypes in an effort ... to break down stereotypes; they're using race as a surrogate for experience." O'Connor then telegraphs her views on the force of the Powell decision in Bakke by stating bluntly that " I don't think it commanded a court." Or that Powell's "diversity" rationale is simply not the holding in Bakke. This makes it easy for a majority of the court, if they want, to ignore Bakke and cook themselves up a new batch of affirmative action law.
Maureen Mahoney, representing Michigan Law School, battles Chief Justice William H. Rehnquist over whether the law school's policy is merely a quota system. Setting aside a fixed number of seats would constitute a quota, she says, but the annual variation in minority acceptance and enrollment suggests that their "critical mass" plan does not. Here Justice Antonin Scalia makes the point he'll make several times today: Michigan's problem is of its own creation. "If Michigan really cares about that racial imbalance, why doesn't it do as many other state law schools do, lower the standards and not have a flagship elite law school." Scalia proceeds to get incredibly annoyed with Mahoney when she refuses to give him a fixed number (i.e., "quota") of how many minority students would represent a "critical mass" or "sufficient number" of minority students at Michigan. "Is 2 percent a critical mass? ... OK, 4 percent? ... You have to pick some number don't you? ... Like 8? Is it 8 percent??"
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.