First Among Equals (21 page)

T
HE ONE AND ONLY TIME
I
WAS OVERRULED
by the president (George Bush) during my tenure as solicitor general was in a desegregation case. The issue was whether the Mississippi higher-education system had taken sufficient steps to dismantle its old, dual system of segregated state-supported colleges and universities. Supporting private plaintiffs who had filed the original lawsuit in Mississippi, the Civil Rights Division had taken the position that more needed to be done, from Ole Miss to Mississippi State to Jackson State and the other institutions in the state system. For its part, Mississippi's lawyers argued that the prior race-based system of admissions (whites only at some schools) was ended when the state announced a policy of race-neutral admissions. Candidates could apply to any institution, whether white or historically black, and be considered on their merits, not on the basis of race.

Our view at the Justice Department was that more indeed needed to be done. We argued back and forth about what “more” was, including whether any institutions would need to be closed down. The practical result of a dual (or segregated) system is, of course, excess capacity. Too many schools were built in order to have two systems of education. To remedy segregation (to “dismantle” the old dual system), some institutions would likely either be closed or have their mission substantially modified, say, switching from a four-year institution to a community (or “junior”) college.

And therein lay the seeds of serious disagreement. The African-American challengers in the litigation felt strongly that one important remedy for the long history of unlawful segregation was to channel more funds into the historically black institutions, such as Jackson State and Mississippi Valley State. I disagreed. The underlying issue was unlawful segregation, drawing lines on the ground of race and channeling students into particular institutions by virtue of race. The victims of this unconstitutional policy were, under my thinking, the individual students. Institutions, on the other hand, had no rights to “equal” treatment.

My position was viewed with alarm throughout much of the African-American higher-education community. Eventually, the president himself stepped in. Responding to the direct appeal of a number of presidents of historically black institutions, the president overruled my position and directed me to change the government's position in the Supreme Court. This was awkward, to be sure, but not terribly embarrassing. The president, after all, was the ultimate decision-maker as to what would be the position of the United States in the Supreme Court. In some quarters that view would be mildly controversial, since the president would be intruding into the “independence” of the solicitor general. My view was different. In our system, the president is ultimately responsible for the actions of the executive branch, including the Justice Department.

What President Bush was doing was based on his judgment and conscience, and I respected both his opinion and his rightful prerogative as the chief executive. As solicitor general, in contrast, I was an “inferior” or “subordinate” officer in the executive branch. If I could not in conscience abide by the president's judgment, then I should resign.

This was not, happily, a resignation kind of issue. I accepted the president's overruling and oversaw preparation of our second brief (the “Reply” brief) to modify our earlier position. The second brief made it clear that the government was in no wise suggesting that predominantly black institutions should be closed.

This did not go unnoticed. My oral argument in the Mississippi case had gone reasonably well, and I was about to wrap up my presentation and sit down. Justice Scalia, never one to miss an opportunity to have a little fun, picked up both briefs we had filed and asked, with a puckish grin, “Now which of these two briefs reflects the position of the United States?” He knew full well, especially since there had been a fair amount of publicity about the president overruling the solicitor general in a case about race and desegregation. I smiled right back, and simply said: “Oh, Justice Scalia, the position of the United States is set forth in the Reply brief.” I sat down quickly. The justices well knew that I had been taken to the presidential woodshed, and the Court, in good humor, would not let that go unnoticed.

Race: This is the enduring issue in American life, including important matters that come to the attention of the nation's highest court.

Gunnar Myrdal, the Swedish sociologist, called it the American dilemma. The O. J. Simpson trial, as the 1990s unfolded, starkly reminded the world of the severe fault lines infecting race relations in the United States. The O. J. drama in Los Angeles had been foreshadowed by the Rodney King beating, triggering rioting seen around the world.

These race-driven events demonstrated that unhealed wounds lived on 130 years after the Civil War and almost a half century after the deep-seated tradition of segregation was condemned by the Supreme Court in the landmark case of
Brown v. Board of Education.

The issue in that case, decided in the early days of the Warren Court, was the constitutionality of racially segregated public schools, found throughout the South and in some other parts of the country as well. The Court came down emphatically against segregated schools, condemning them as violating the Fourteenth Amendment's guarantee of the equal protection of the laws. To reach this decision, the Warren Court, as we mentioned earlier, overruled
Plessy v. Ferguson,
the 1896 case that had provided the legal basis for state-sponsored segregation. So much for
stare decisis,
the value given to precedent. It had, in contrast to abortion and
Miranda,
as we shall soon see, no weight in the highly charged context of affirmative action.

Chief Justice Earl Warren had taken his seat on the Court not long before
Brown
was rendered. Warren, as chief justice, was able to bring and hold the entire Court together in an opinion that he read from the bench.
Brown
proved to be one of Warren's, and indeed the Court's, greatest achievements. It not only reversed
Plessy
and condemned school segregation but also launched the Court's assault on government-imposed segregation more generally. In a series of cases decided in
Brown's
wake, the Court invalidated segregation in public parks, beaches and recreation facilities, and public transportation. Each time, the Court issued a memorandum opinion in which it simply cited
Brown
as the basis for its new judgment. Where racial segregation took place wasn't the issue for the Court; that it occurred at all was the problem.

Brown
ratified the civil rights movement in its work even as it inspired the movement to go forth and do more. The Court—and much of the country—could not deny the compelling moral argument of civil rights. It was the message of equality, the great unifying principle of so much of the Court's work, as we saw in the earlier chapters on religion. In 1957, Congress enacted the first of several statutes designed to protect civil rights against racial discrimination. The two most important came in the Johnson administration: the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Taken together, they extended the principle of nondiscrimination throughout the public sector and into much of the private sector.

Challenges to the civil rights laws made their way to the High Court, which showed restraint (another unifying principle) by deferring to the political branches. Congress had the power, the Court held, to regulate even local eating establishments and small motels, and in particular to require local restaurants and other “public accommodations” to be open to individuals of all races. This was the spirit of John Marshall living on, vindicating national power—ultimately the power of Congress to guide the country's destiny. In the same spirit, the Court concluded that Congress could require states with records of race discrimination in voting to eradicate any measure that had been used to exclude blacks from the voting booth. Thus did the Court condemn the poll tax and literacy tests. In addition, the Warren Court held that Congress enjoyed the power to require offending states to submit for Justice Department review any proposed change, no matter how modest, in voting and election procedures.

Happily for the country, the justices were unanimous on these matters. Equality triumphed. And the justices remained unanimous in two highly important race cases decided in 1971 by the Burger Court. Indeed, Chief Justice Burger wrote the Court's opinion in both cases. In the first, the Court issued a ringing endorsement of a district judge's sweeping busing order in Charlotte, North Carolina. The order was destined to remain in place (in some measure) for an entire generation. The case also provided the model for similarly sweeping busing orders around the country. In the second case, the Court broadened the 1964 Civil Rights Act's definition of prohibited discrimination in employment. A power company in North Carolina had required a high-school diploma for entry-level jobs. Fewer black than white applicants could meet this requirement. The Court ruled that the 1964 law prohibits not only overt discrimination but practices “fair in form but discriminatory in operation.” Only if such practices could be demonstrably tied to job performance would they be legal.

But the moral and legal choices soon became more difficult. Eliminating discriminatory barriers was seen, in many quarters, as not enough. To get beyond racism, it was said, race had to be taken into account. This translated into a fundamental moral and legal dilemma: Was it right to consider race in determining the allocation of limited job or educational or other opportunities? Was “affirmative action” that preferred minorities on account of their race indeed lawful?

Two justices led the way in crafting the Court's answers: Justices Lewis F. Powell, Jr., and Sandra Day O'Connor. Indeed, Powell's concurring opinion in the landmark 1978 case of
Bakke v. Board of Regents
remains important— and controversial—still today. As for Justice O'Connor, her opinions for the Court in cases involving public contracts and voting constitute a large part of the current law on race.

Bakke,
in particular, has long been the flagship case in race-related admissions issues. The facts of the case were troubling. Allan Bakke, a white applicant, applied for admission to the University of California (Davis) Medical School. There were 100 places in what would have been his class. Sixteen of these were set aside for minority applicants. Allan Bakke was rejected. On paper, he was more qualified than those admitted under the university's set-aside program, which insulated minority applicants from comparison with those competing for the eighty-four other seats. Bakke sued, contending that the medical school's two-track system discriminated against him on grounds of race.

When the case arrived in the Supreme Court, the outcome was entirely in doubt. Philosophical lines, so clear in
Brown
and in the decisions upholding the constitutionality of the landmark civil rights legislation of the 1960s, were now blurred. William O. Douglas, an FDR appointee and one of the Court's most outspoken liberals, had railed against race-based affirmative action in his dissent from the Court's denial of
certiorari
in a 1974 case raising the same issue Allan Bakke later did. The reliable friend of liberty and author of an anti-establishment book titled
Points of Rebellion,
Douglas wrote that students should be admitted on the basis of “individual attributes,” not the “capricious and irrelevant factor” of race. But Douglas was no longer on the Court, having been forced to step down in 1975, the victim of crippling strokes. President Ford quickly replaced him with John Paul Stevens, a bow-tie-wearing midwesterner who had been a judge on the U.S. Court of Appeals for the Seventh Circuit. What would the five appointees of President Nixon and Ford— enough to make a majority—do? The future of affirmative action in higher education was now in the hands of the Burger Court.

The
Bakke
case revealed a Court not only far from unanimous it was as deeply divided on affirmative action as the country itself. The Burger Court invalidated the Davis program and ordered Bakke admitted. But the Court went on to say that Davis and institutions of higher education generally may take race into account in admitting students. There were different majorities—the narrowest possible—for each of these conclusions. Four justices—Justice Potter Stewart, Chief Justice Burger, Justice (and future chief justice) Rehnquist, and Justice Stevens— sided with Bakke. Four others—Justices William Brennan, Byron White, Thurgood Marshall, and Harry Blackmun— said the set-aside program was legal. The crucial opinion was Justice Lewis Powell's. Powell agreed with the first group of four and thus provided the fifth vote necessary to strike down the program and order Bakke's admission. But Powell also agreed with the second group of four that a university may take race into account in choosing applicants.

To complicate things still further, Powell disagreed with the pro-affirmative action group in two ways. First, he was unwilling to endorse what the four justices would uphold: a two-track admissions system, one for nonminorities and the other for minorities. Instead, for Powell, a school must use a unitary admissions system that puts all applications in one basket, so to speak. Second, whereas this foursome said race may be taken into account to remedy societal discrimination, Powell justified consideration of race on a different ground: to achieve educational diversity.

Powell's opinion was the work of a lawyer laboring hard to find middle ground. He avoided abstract principles. He noted the inherent sensitivity of any line-drawing on the basis of race. He cited cases showing why the judiciary should be deeply skeptical when government makes distinctions grounded in race. If a public agency wishes to do that, he said, it must have a very good explanation, since it is best if government does its business in a racially neutral fashion. Powell was willing to let government, in this case a state medical school's admissions office, take race into account because education was different from all other areas, including employment, where race-based decisions can be deeply problematic. What makes higher education different, he said, is the First Amendment freedom to make judgments about the educational mission, including the kind of student body a college or university chooses to have. Thus, a university may choose to create a diverse student body on the theory that such a student body will promote an educational environment of most benefit to all students. Diversity, for Powell, encompassed multiple diversities—of geographical and cultural backgrounds, races and ethnicities, and unique academic, athletic, or artistic talents. Diversity, for him, was not merely racial diversity.