First Among Equals (22 page)

Powell searched for a plausible example to make his case, and like the careful lawyer he was and the influential school-board chairman (in Richmond) he had once been, he invoked the admissions policy of one of the nation's top schools, Harvard University. Harvard, he said, had sought to ensure diversity in each class by taking into account what might be called nonracial diversity factors—geography, for example. An applicant from Montana might have a leg up on yet another smart applicant from the Northeast. But now, Powell noted, Harvard also took into account race and ethnicity. Minority students, Powell said, can contribute something white students cannot offer.

There were limits, however. Having sanctioned the use of race in the admissions process, Powell did not want race to become the
sole
factor in deciding which students actually got in. Here again, his instinct was that of the careful lawyer seeking a way to avoid a constitutional problem. Powell's solution was to say that race may be a factor, a plus in a student's file. But
how much
that plus might count was unclear. Powell simply said that the weight given to race, like that given to the other nonracial diversity factors, could vary from year to year depending on the mix both of the student body and the applicants for the incoming class.

Powell's middle way was not without its weaknesses, as the four pro–affirmative action justices were quick to point out. There is no difference, they said, between setting aside a predetermined number of places for minorities and using minority status as a positive factor to be considered in evaluating applications. In other words, a school could achieve the same results as Davis simply by following the kind of admissions policy Powell had endorsed. Either way, race would be given the same weight.

Powell was unpersuaded; he believed there was a big difference in what he proposed: The rights of someone like Allan Bakke would be better protected in a unitary admissions system rather than one, like Davis's, that was in part racially exclusionary and set up a quota for a certain number of minorities. Still, a unitary system that took race into account was one that compromised the principle of race neutrality. The principle “Don't assign children to schools on the basis of race” had, of course, been at the core of
Brown.

Notwithstanding the weaknesses of his position, Powell's triumph was evident. Even though he spoke only for himself, Justice Powell had managed to find the position that decided the case for a deeply fractured Court and, as a result, set the critical rule for affirmative action in higher education for years to come. Colleges, universities, and graduate and professional schools were largely supportive of his opinion. Not until the nineties would its weaknesses be challenged in litigation in Texas, Michigan, and elsewhere.

Meanwhile, divisions on the Burger Court as to the issue of race sharpened. Unanimity was lost. Equality as a unifying principle could not bring the increasingly warring justices together. To the contrary, the Court's deep ambivalence toward affirmative action mirrored a deeply divided nation. In
Fullilove v. Klutznick
(1980), a divided Court upheld, by a 6–3 vote, a 10 percent set-aside passed by Congress to benefit minority contractors on federally funded public-works projects. On its face, the program seemed flatly inconsistent with
Bakke;
a specified percentage of federal public-works projects had been carved out and reserved
exclusively
for minority-owned businesses. In his plurality opinion, Chief Justice Burger failed to set forth a coherent justification for Congress's foray into affirmative action. The chief's opinion brimmed with language emphasizing the great respect owed to Congress, the novelty of the issue, and the virtues of judicial restraint. As his former law clerk on the threshold of joining the Justice Department in the incoming Reagan administration, I knew that the chief's approach was inadequate as a standard to guide future cases. It was, truth be told, a muddled opinion, but it was guided by the unifying principle of deference—the judiciary should not stand in the way of Congress's judgment. This was, at bottom, a punt. The chief, whom I loved and respected, had authored an intellectually lazy opinion that would not stand the test of time.

Tellingly, the principal critique of Chief Justice Burger's deference-to-Congress approach came from Justice Powell. The pivotal justice in
Bakke
said that the Court's conclusion was correct, but that greater attention to legal reasoning and analysis was needed. More careful lawyering was called for. As Powell saw it, simply repeating the mantra of “defer to Congress” wasn't sufficient. He was right.

Ironically, Justice Powell's observation was the abiding critique of the Warren Court, which had championed specific results without doing the hard work of the legal craft: explaining in rigorous fashion why the Court was resolving the issue the way it did. Here the Burger Court was wandering about directionless. It seized upon large principles, such as judicial restraint, but the legal reasoning seemed thin and unconvincing. The unpredictability and fragility of the Court's approach to affirmative action was apparent in the position of the justice who early on was the Burger Court's wild card, Justice Stevens. Soon to align himself solidly on the left and thereafter to be, steadfastly, one of the Court's most liberal members, Stevens was still relatively new on the Court. But not a strain of liberalism was evident in his dissent. Justice Stevens railed against the congressional set-aside as unconstitutional. Showing the same hostility Justice Powell had toward the set-aside in
Bakke,
Justice Stevens made it clear that if Congress sought to legislate in the delicate arena of race relations, it had to move cautiously. In the case at hand, as Justice Stevens saw it, Congress had simply pulled the 10 percent set-aside figure out of the air. There had been no committee hearings, no elaborate legislative findings seeking to justify the program. The set-aside, as he saw it, was simply born on the floor of the House of Representatives. It was an act of legislative will, essentially unconsidered and undebated, when great care was needed.

The approaches of Justices Powell and Stevens foreshadowed the more analytical approach taken by majorities in future cases. These were lawyers, not politicians. They were more careful and rigorous in analysis. Lawyerly style aside, however, divisions on the Court deepened, and Justice Stevens soon moved squarely to the pro-affirmative action camp, joining Justices Brennan, Marshall, and Blackmun. He did so with no explanation whatever of his about-face. He moved, silently, to the left—and remained there.

As Justice Stevens veered leftward (and thus diminished his importance), a new justice emerged to play the central role in shaping the Court's approach in race cases: Justice O'Connor. Appointed by President Reagan in 1981, she served alongside Powell for six years. Two years after Powell stepped down, in a case coming out of Powell's beloved Richmond, she took control of the law of affirmative action. At issue was the constitutionality of an ordinance passed by the City of Richmond in 1983. This ordinance, patterned in key respects after the federal public-works set-aside sustained in the 1980
Fullilove
case, specified that 30 percent of all public works were to be subcontracted to minority-owned businesses. The city council justified the ordinance mainly by citing a statistical disparity: that in the previous five years a paltry two-thirds of 1 percent of city construction contracts had been awarded to minority-owned businesses, yet minorities constituted more than half of Richmond's population. The council settled on the particular percentage of contracts to be routed to minority businesses by picking one more or less halfway between two-thirds of 1 percent and 50 percent. As for the minority groups eligible for the set-aside business, the council designated the same ones Congress had when it passed the federal set-aside sustained in
Fullilove.
These were: blacks, Hispanics, Asians, and Eskimos or Aleuts. That made no sense. At last report, Richmond boasted an Eskimo and Aleut population of zero (or just about). As if more were needed, these businesses could be located anywhere in the country; the ordinance did not make eligible only local or state businesses. A business
not
owned by one of these designated (and rather far-flung) minorities had sued the city, claiming that the ordinance violated the Fourteenth Amendment's guarantee of the equal protection of the laws.

The Court in
Croson v. City of Richmond
voted 6–3 to strike down the Richmond ordinance. The outcome illustrated the profound difference wrought by changes in the Court's composition, for two of those who had joined the majority in
Fullilove
were no longer on the Court—Chief Justice Burger and Justice Powell—and all three justices named by President Reagan were in the majority— O'Connor, joined by Justices Scalia and Kennedy. O'Connor's opinion for the Court, moreover, displayed a deep concern for legal doctrine, and rigor—not found in previous majority opinions—in affirmative-action cases. The looseness of
Fullilove
was a thing of the past. Ronald Reagan's appointees had changed the law of affirmative action.

The Court's race jurisprudence had left some basic questions unresolved. The Court long ago had agreed that in reviewing an equal-protection challenge to a state-sponsored racial classification it should use a test known as “strict scrutiny.” This is, as the name suggests, the most demanding test possible. Under a strict-scrutiny standard, unless the racial classification in question has been
narrowly tailored
to achieve a
compelling state interest,
it is unconstitutional. Obviously, none of the racial classifications of the Jim Crow era—ones that invidiously discriminated against blacks—could survive this test.

But the Court had not resolved whether racial classifications designed to
help
blacks, so-called benign classifications that were preferential toward African Americans, should be subjected, when challenged, to the same test. A minority of four justices had argued in
Bakke
that racial preferences, because they were benign, should instead be subjected to a less demanding (and generally permissive) test. But that position had never commanded a majority. In
Croson,
a majority—speaking through Justice O'Connor—finally emerged to say that racial preferences must indeed be examined under strict scrutiny.

The significance of the case lay in its unambiguous (and far-reaching) rule: The Equal Protection Clause is the same for all persons, regardless of race. Because no racial classification has ever satisfied strict scrutiny, this doctrine implied a clear threat to racial preferences wherever they existed. The Constitution, in this context at least, was all but color-blind.

Applying her rigorous approach, Justice O'Connor found the Richmond set-aside wanting in terms of both “compelling interest” and “narrow tailoring.” She suggested, importantly, that
remedying discrimination
was the only interest that the Court could deem “compelling.” Anything short of that would fail the strict-scrutiny standard. Richmond had failed to demonstrate that there was such discrimination to be remedied. O'Connor brushed aside the statistical disparity: You could not infer discrimination simply from that. Even if the disparity were discrimination, the set-aside itself was not a narrowly tailored remedy, she said. The city council didn't consider race-neutral means of increasing minority participation in city contracting; indeed, it settled on the 30 percent set-aside without pondering other options. Nor had the city council provided means by which those administering the set-aside could learn whether its beneficiaries had actually suffered discrimination on the part of the city or prime contractors. Finally, said O'Connor, because the remedy was available to businesses far removed from Richmond, there could be some odd results. A successful black, Hispanic, or Asian entrepreneur from another part of the nation could enjoy an absolute preference over other citizens (in Richmond) based solely on race.

O'Connor, in short, had cut the poorly crafted Richmond program to pieces. An earlier Court would likely have been less demanding and far more indulgent. But the Rehnquist Court, with O'Connor in the lead, was proving different. It was not only deciding cases but, in that process, framing doctrine that could guide the lower courts—doctrine that clearly threatened racial preferences. The Rehnquist Court was, at least in this context, strenuously evenhanded in applying the equality principle.

A year after
Croson,
the Court seemed suddenly, and strangely, to backtrack. In
Metro Broadcasting v. Federal Communications Commission
(1990), it upheld racial preferences used by the commission in the grant and transfer of broadcast licenses. Soon enough the Court, with Justice O'Connor writing, would reverse
Metro Broadcasting.
But the case powerfully illustrated Justice Stevens's movement to the left. In
Bakke,
as we saw, Stevens had voted to strike down Davis medical school's racially preferential admissions program. But now, in the context of broadcasting, Stevens abandoned that position to join the foursome in
Bakke
who voted to sustain a similar program, thus producing the slim majority that sided with the FCC. This new (and, as it turned out, fleeting) majority said that the FCC's preferences were benign in character and thus shouldn't be subjected to the same strict-scrutiny review as the old-fashioned, invidious ones. The majority insisted on applying the more relaxed standard of intermediate scrutiny. In dissent, O'Connor insisted that there is no such thing as a “benign” racial classification, and that all racial classifications must satisfy strict scrutiny.

Metro Broadcasting
was written by Justice Brennan. It was to be his last opinion in a remarkable tenure that started in 1957, when he was appointed by President Eisenhower. This veteran holdover from the Warren Court was replaced by David Souter. A year later Thurgood Marshall would step down, and Clarence Thomas took his seat. President Bush made both appointments.