Solicitor General’s Briefs in Michigan AA Cases: Narrowly Tailored

Writing a day before President Bush announced his position on the Michigan AA cases, Linda Chavez argued that

the administration must go further than simply criticizing Michigan’s program. Unless the Supreme Court once and for all throws out the “diversity” rationale as the basis on which schools can elect to take race into account in picking their students, this issue will continue to fester. And the president should lead the way by urging the Court to abandon racial discrimination in the name of “diversity.”

He didn’t. The two briefs filed by the Solicitor General (Grutter [law school] here; Gratz [undergraduate)]here) are both “narrowly tailored,” to borrow a phrase, to the facts of the Michigan policies. (Links thanks to Howard Bashman)

In the final analysis this case does not require this Court to break any new ground to hold that respondents’ race-based admission policy is unconstitutional. (Grutter Brief, p. 37, but the same point is made in the Gratz brief)

Rather than argue, as conservatives had hoped, that diversity can never justify racial discrimination, the two briefs argue that the Michigan policies fail constitutional muster because they did not sufficiently explore alternative diversity enhancing policies before adopting race-based preferences. In addition, both briefs maintained that both Michigan’s undergraduate and law school admissions policies operated as a de facto quota.

The good news is that both briefs are workmanlike, competetent documents that present a compelling argument that may well win. The bad news is that, if so, they will not win very much. If Michigan loses on the terms laid out in the administration briefs, it will be harder for other schools to justify race-based preferences. But they will have been given enough room to try, and try, and try, and try they will.

It will be interesting to see if administration’s failure to drive a stake through the heart of racial preference at least earns it any less animosity from Hispanics, blacks, and liberals. I doubt it.

Say What? (2)

  1. Xrlq January 17, 2003 at 3:52 pm | | Reply

    I suspect that the Bush Administration may playing “good cop, bad cop” with the Supreme Court, i.e., they want the court to rule strongly against racial preferences but they don’t want their own fingerprints on it. Of course the Court could hold for the plaintiffs without disturbing Bakke; indeed, simply applying Bakke to these facts would probably produce that result. But I don’t see this case going down that way. The tortured reasoning of Bakke only became law because eight of the nine Justices were split along idelogical lines, leaving one Justice, Lewis Powell, to split the baby. This time around, I expect a similar ideological divide, with a solid majority in the no-preferences camp, a few Justices in the “reverse discrimination is neat” camp, and nobody in the Powell camp.

  2. Dean Esmay January 18, 2003 at 5:49 am | | Reply

    I have to disagree somewhat with Xrlq. I don’t think they’re playing good cop/bad cop at all. I think they’re doing exactly what the President thinks is right.

    People don’t get this, but if you look at the Bush family in general, and George W. in particular, they have always considered themselves racial progressives, bleeding hearts even on the issue of race. There was a very good writeup of that in The New Republic a couple of years ago, and I’ll dig up the link on it if someone’s interested.

    George W. in particular, for all that his critics on the Left think of him as an “ultraconservative” or as “hard right” or whatever miss the fact that, in general, he has always taken the conservative line on most issues, but softened it with a fairly predictable bleeding heart cushion to soften the blow.

    I mean, seriously, that’s such a pattern with the man, it’s almost to where, outside of military matters, you can tell exactly what his position will be: just take the hard line, Weekly Standard/National Review position, and throw in several cushiony left-leaning modifications, and that’s exactly what George W. will do.

    I have very little doubt that the President badly wants to help disadvantaged kids of all colors. He feels it in his bones. He also doesn’t like racial preferences but wants to support diversity.

    And so he’s taking a course that’s close to everything conservatives want, but not quite.

    Classic Dubya. It really is. You just have to watch the man: he governed the same way in Texas.

Say What?