The press section at the U.S. Supreme Court is a long, narrow side gallery separated from the rest of the room by sequoia-sized columns, heavy swags of drawn curtain and elaborate grillwork. Most of the time journalists have their pick of seats, but when the gallery fills up, the view of the courtroom for all but the most fortuitously placed comprises a few rows of spectators, a portion of the far wall and ceiling, and, perhaps, the enrobed elbow of Justices Stephen Breyer or Ruth Bader Ginsburg. The gallery, in other words, ensures that most journalists neither see nor are seen. It's hard not to feel like some minor courtier craning for a glimpse of the king.
Instilling a proper sense of awe is perhaps necessary to convince some people that it's OK for nine unelected officials to interpret the Constitution for the rest of us, but the sense of import was even greater than usual yesterday morning. The cases being argued, Gratz v. Bollinger and Grutter v. Bollinger, may well decide the future of affirmative action for years to come. Yesterday was the judicial equivalent of the "Thrilla in Manila," and the Court was packed.
In this case, as in nearly every close decision these days, the swing vote will belong to either Justice Anthony Kennedy or Justice Sandra Day O'Connor. Justices John Paul Stevens, David Souter, Ginsburg and Breyer are firm supporters of affirmative action; Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas are staunch opponents. One of the two switch-hitters is all the University of Michigan -- which is defending affirmative action in college and grad school admissions -- needs to win, but neither justice seemed especially partial yesterday to the school's arguments. Then again, neither seemed particularly won over by the arguments of the plaintiff either, so the public will have to keep guessing for now. In the end, Kennedy and O'Connor's decisions might come down to whether they are more offended by the vagueness of diversity's defenders or the obduracy of its attackers.
To recap, Jennifer Gratz and Barbara Grutter, both white, each sued the University of Michigan (or, more specifically, Lee Bollinger, the university's president at the time) -- the former because she didn't get in as an undergraduate, the latter because she was rejected by the law school. They both argued that the admissions policies of the school discriminated against them on the basis of their race. The cases are separate, and district courts ruled differently in each, finding in favor of Grutter but not of Gratz. The Grutter decision was subsequently overturned by the 6th U.S. Circuit Court of Appeals. Gratz also appealed to the 6th Circuit, but the Supreme Court decided to hear her case along with Grutter's before the appellate court had the chance to rule.
The argument against affirmative action -- and, despite the occasional reference to the specifics of the University of Michigan's program, the petitioners' lawyers were attacking affirmative action itself -- has a comforting clarity. Kirk Kolbo and U.S. Solicitor General Theodore Olson, who jointly represented both Grutter and Gratz, argued that affirmative action's ends don't justify its means and its means don't necessarily guarantee its ends. Kolbo portrayed affirmative action as pursuing the unquantifiable goal of diversity "on the back of the constitutional right" to equal treatment under the law. Furthermore, Olson added, it paradoxically treats people as members of a group instead of individuals, equating diversity of skin tone with diversity of opinion and experience, or, as he put it, "using stereotypes in an effort to break down stereotypes."
In contrast, despite the sociological and psychological studies they put on display, Team Bollinger sounded rather touchy-feely. When John Payton, the lawyer defending the undergraduate admissions policy, defined the "critical mass" that admissions officers aim for -- as the number of students of a certain ethnicity needed so that "they feel comfortable acting as individuals" -- it sounded at once inexact and contradictory. Under pressure from Rehnquist, he defined an "underrepresented minority" as one that would not be represented by a "sufficient number" of students without affirmative action, and then defined a "sufficient number" as what was necessary "to meet educational goals." The whole thing seemed like a rhetorical Möbius strip.
After the oral arguments, Bollinger, now president of Columbia University (and himself a former law school professor), took his own stab at defining "critical mass" from the Supreme Court's steps: "Everybody likes to have clear definitions and formulas and things that will really make it easy. Most of life can't be reduced to that, and critical mass is just part of that broader reality. . . . It is an understandable impulse to want greater clarity, and yet at the end of the day anyone who thinks about it long enough realizes that you have to live with a matter of judgment." It seemed shaky ground on which to base a policy.
Of course, part of this difficulty is imposed by the decision in the 1978 case Bakke vs. Regents of the University of California -- the same decision that set the disputed precedent for diversity's role as a "compelling state interest" -- which expressly forbade quotas in university admissions. Whenever the discussion of the admissions process took a quantitative turn (and often when it didn't), Justice Scalia pounced on the quota comparison. At one point he gleefully badgered Maureen Mahoney, the lawyer for the University of Michigan Law School, on what constituted a critical mass: "Is 2 percent a critical mass, Ms. Mahoney? . . . OK, 4 percent? . . . You have to pick some number, don't you? . . . Like 8, is it 8 percent? Now, does it stop being a quota because it's somewhere between 8 and 12, but it is a quota if it's 10? I don't understand that reasoning. Once you use the term critical mass, you are into quota land." Later on, Justice Kennedy found himself at the borders of quota land, telling Payton, "Your system looks to me like a disguised quota."
The mismatch of hard numbers and fuzzy ideas was what angered Scalia and dismayed Kennedy. But while the diversity defense stumbled on the elasticity of its terms, its attackers overreached in the rigidity of their demands. When Kolbo repeatedly insisted that race could not be considered at all in admissions decisions, he was met -- most strikingly from O'Connor and Kennedy -- with strong skepticism. Kennedy thought that it was "a very legitimate concern" that minorities are consistently underrepresented; O'Connor pointed to a host of precedents upholding the right to consider race and upbraided Kolbo for "speaking in absolutes."
Paradoxically, the intransigence of Kolbo's argument lends a certain strength to those of his opponents. "The fundamental problem with the diversity rationale," according to Kolbo, "is that it depends upon the standardless discretion of educators." But Breyer objected to this characterization. The university's decisions were in fact not standardless, he responded. Admissions decisions require doing "something lawyers don't normally do, which is to select among people" while individually weighing "which one is better for this particular slot." Kolbo's objection, he went on, simply grows "out of the nature of the problem." It is something, he implied, that is tricky to handle legally -- that, in the lawyer's lexicon, demands standards but not necessarily rules.
Or, as Mahoney put it, the question before the court was not "whether or not [diversity] is important enough to override discrimination but whether it is discriminatory at all." Kolbo and Olson maintained that affirmative action eclipses individual merit, but it might just as easily be seen as its refinement. As affirmative action currently functions, it may be somewhat crude, but it helps society work toward a model where academic achievement is decoupled from the still very real limitations imposed by race and class. There is, after all, something deeply offensive about the idea that there is nothing wrong with our current idea of merit if whole racial and socioeconomic groups consistently perform at levels far below others. In life as in the Supreme Court's press gallery, being fortuitously placed still matters far too much.
Drake Bennett is a Prospect writing fellow.
