The Nine (38 page)

The Michigan tactics in front of the justices came to resemble a political campaign as much as a litigation strategy—which was fitting for a Court that hewed so closely to public opinion on controversial issues. Bollinger and his team knew that the key to winning O’Connor’s vote, and thus the case, was mobilizing establishment support for affirmative action. Civil rights groups, even other universities, would be expected to support Michigan’s position, but the justices had to know that support for affirmative action transcended what was left of the traditional Democratic Party coalition.

Earlier, when the case was before the district court, Bollinger and Marvin Krislov, the university’s general counsel, had persuaded General Motors to submit an amicus curiae, or friend of the court, brief on behalf of the university’s program, focusing on the importance of developing a diverse workforce for Michigan’s most famous corporate citizen. In the Supreme Court, the university recruited sixty-five of the Fortune 500 to sign a brief in support of its affirmative action program, and it would come to be endorsed by most of the biggest and most respected companies in the country, including Boeing, Coca-Cola, General Electric, and Microsoft. As those companies told the justices in their brief, “Today’s global marketplace and the increasing diversity in the American population demand the cross-cultural experience and understanding gained from [an education where students] are exposed to diverse people, ideas, perspectives, and interactions.”

But the military was potentially an even greater ally for the university. Active duty officers could not take a stand on such a controversial issue, but the team that Ford set in motion sought out the next best thing—retired military officers. Krislov contacted Joseph Reeder, a Washington lawyer who had been undersecretary of the army in the Clinton administration, and he began recruiting high-profile retirees to sign a brief. The group eventually included H. Norman Schwarzkopf, John Shalikashvili, Hugh Shelton, William J. Crowe, and two dozen others. To write the military brief, the Michigan team recruited Carter Phillips and his colleague Virginia Seitz, pillars of the Supreme Court bar and thus not at all usual suspects in a civil rights case.

“Based on decades of experience, amici have concluded that a highly qualified, racially diverse officer corps educated and trained to command our nation’s racially diverse enlisted ranks is essential to the military’s ability to fulfill its principal mission to provide national security,” Phillips began his brief. Enlisted military were 21.7 percent African American, while the officer corps was only 8.8 percent black. “The officer corps must continue to be diverse or the cohesiveness essential to the military mission will be critically undermined,” he continued.

Then, in the key section of the brief, Phillips showed that the three major service academies—West Point, Annapolis, and Colorado Springs—all practiced race-conscious affirmative action in admissions. (So did the broader ROTC program.) It wasn’t enough to say that the military should simply recruit more in minority neighborhoods; the armed services had to extend special treatment—affirmative action—to its minority applicants. In other words, “At present, the military cannot achieve an officer corps that is
both
highly qualified
and
racially diverse unless the service academies and the ROTC use limited race-conscious recruiting and admissions policies.”

The implicit question at the heart of the retired officers’ brief was, if affirmative action was good enough for the service academies, why wasn’t it good enough for the University of Michigan?

And that, precisely, was what Sandra O’Connor was asking herself.

17

THE GREEN BRIEF

T
he period leading up to the
Grutter
and
Gratz
decisions—the early part of 2003—was not an easy time for O’Connor. Her husband John’s condition had continued to deteriorate. He had started to accompany her to work every day, and the justice hired his former secretary to keep an eye on him as he sat on the couch in her office, chatting or reading the newspaper. No one uttered the word
Alzheimer’s
at the Court, but the nature of John’s problem was increasingly obvious to all.

The justice and her husband would arrive together in time for her exercise class in the morning, stay through their lunch together, and then return home at about two, when she would read briefs. Even then, they never stopped going out at night, to embassy parties, museum openings and the like, just as O’Connor had continued making the rounds fifteen years earlier, when she was weakened by her chemotherapy for breast cancer. In her forthright, determined way, O’Connor did not believe in making concessions to illness, her own or anyone else’s.

O’Connor’s own health was fine, despite a persistent tremor that she had had for years. For her morning exercise class, she added salsa dancing to step aerobics and Pilates. She still loved the work of the Court and always sought more of it. O’Connor never signed on to Rehnquist’s crusade to cut the Court’s docket and thus was always urging her clerks to scour the petitions for cases where she could vote for cert. “Find us some good cases!” she would say.

Still, like many older people, O’Connor resisted changes to her routine, especially the one promised by an impending renovation project at the Court. The building had not been upgraded since it opened in 1935, and Rehnquist had prevailed upon Congress to fund a full overhaul. Each of the justices would have to vacate his or her chambers for a while, and O’Connor was slated to be the first evacuee, in 2004. A pack rat who loved her view and her office, especially now that John was joining her there every day, O’Connor dreaded the prospect of moving to the Siberia of the Court’s second floor.

By now, O’Connor usually had little trouble making up her mind about how to vote. She assigned one clerk to write a bench memo on each case to be argued and then invited the other clerks to write countermemos if they did not agree with their colleague’s recommendation. This was the year that O’Connor cut back to a five-day schedule—there were no more crockpot lunches for her clerks on Saturdays—but she still went over each case with them before oral arguments. She did not agonize. Having laid out her views for her clerks, she had them help her craft some questions for the lawyers for both sides. She didn’t believe in playing devil’s advocate, either. The tilt of her questions at oral argument almost always showed the way she was going to vote.

But
Grutter
and
Gratz
were different. They were not easy cases for O’Connor. This time, she
did
agonize. In the first place, the stakes were enormous. Unlike some high-profile cases before the justices, the Michigan lawsuits had more than symbolic importance. Admissions decisions for thousands of students were at stake, and so, less directly, was all affirmative action in government and private companies. (In contrast, because there were so few actual prosecutions for sodomy,
Lawrence v. Texas
, which was argued the same year, had fewer immediate, real-world consequences.) In addition, O’Connor’s favorite route through any problem—the middle of the road—wasn’t readily obvious. Either universities could consider the race of their applicants or they couldn’t; even O’Connor would have trouble finessing that kind of choice.

In the weeks leading up to the argument, O’Connor sequestered herself in her office, poring over the briefs of the parties and the amicus briefs as well. Stewing over the Michigan cases at length—a rarity in itself—she would pop out of her office with cryptic and sometimes contradictory observations. She was thinking out loud.

“I need to be consistent with what I said in
Croson
and
Adarand
.” This suggested a vote for the plaintiffs. (O’Connor thought that a justice being inconsistent was…unattractive.)

“Race consciousness is a pernicious thing.”

But O’Connor also said:

“What if these schools become all-white? Can we live with that?”

“This isn’t government contracting. This is education. And Lewis said that education was different.”

“Lewis” was Lewis Powell, O’Connor’s mentor on the Court and her predecessor as its swing vote. The key precedent in the area was Powell’s opinion from 1978 in
Regents of the University of Californiav. Bakke
, where the Court struck down a rigid quota system for minorities at the state medical school at Davis. (In each year’s class, the university reserved sixteen of one hundred seats for minorities.) In that case, no opinion of the Court commanded a majority, but Powell’s came the closest and his view came to be considered the prevailing law on the subject. Powell rejected the quota system at Davis, but he did say that universities could use race as one factor in admissions. His reasoning was somewhat unusual for his time. In the seventies, the main justification offered for affirmative action tended to be that the nation owed a special debt to blacks and other historically disadvantaged groups; because of decades of discrimination, mere equal treatment was not enough to provide them a fair chance.

But Powell justified affirmative action because of what it did for everyone, not just for its immediate beneficiaries. In his view, diversity—a buzzword that came into wide use only after
Bakke
—helped all students of all races. “The nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples,” Powell wrote, so “race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file.” (Powell quoted at length from the admissions plan at Harvard College, which stated, in part, that “the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases.”) In the subsequent twenty-five years, Powell’s rationale had become the dominant intellectual justification for affirmative action—not as a handout to the downtrodden but as a net benefit to the society as a whole.

The question in
Grutter
and
Gratz
was whether Powell’s ruling should remain on the books. As the justices emerged from behind the red curtain to hear argument on the morning of April 1, 2003, not even O’Connor’s clerks knew how she would vote.

The fact that the cases happened to be argued that month was crucially important. Less than two weeks earlier, on March 20, American and allied forces launched their invasion of Iraq. In this initial period, the war looked like a tremendous success, as American troops cut through Iraqi resistance and stormed toward Baghdad. As a result, in the country and at the Court, the military was held in especially high regard. By the morning of the arguments in
Grutter
and
Gratz
, coalition forces had closed to within about forty miles of the Iraqi capital, and there was even more dramatic good news that day for the U.S. military. Army Pfc. Jessica Lynch, who had been kidnapped in Iraq on March 23 and thus become a symbol of American determination, was freed in a raid by Special Operations forces. (Like the war itself, Lynch’s story turned out to be more complicated than it originally seemed.) In short, though, the arguments in
Grutter
and
Gratz
took place at a moment when confidence in the American military was soaring.

In specific terms, there were two legal questions at issue. In light of O’Connor’s opinion in
Croson
, the Michigan lawyers knew that the Court would apply strict scrutiny to the affirmative action programs. So the first question was whether fostering diversity could ever be a “compelling interest”—that is, the kind of factor that might lead the Court to allow the Michigan programs to withstand the usually fatal strict scrutiny. The second question, which would be reached only if the first one was decided in Michigan’s favor, was whether the undergraduate and law school admissions programs were narrowly enough tailored to meet the goal of advancing diversity.

O’Connor didn’t make the lawyers wait long for her first question. The argument by Kirk Kolbo, who was representing Grutter in the law school case, had an elegant simplicity. For the university to consider the diversity of its applicants was fine—but only on the basis of experiences or perspectives or geography, not on the basis of race. To Kolbo, the Constitution forbade any consideration of race, as a plus or minus factor for any candidate.

“You say that race can’t be a factor at all, is that it?” O’Connor asked. “Is that your position, that it cannot be one of many factors?”

Right, said Kolbo. “Our view, Your Honor, is that race itself should not be a factor among others in choosing students.”