… Sandra Day O’Connor is baaaaack. In a fine if depressing article in today’s Chronicle of Higher Education, Peter Schmidt reports that in an article in a new book, The Next Twenty-five Years: Affirmative Action in Higher Education in the United States and South Africa, Sandra Day O’Connor said she didn’t really mean that anyone should regard her “expectation” that racial preferences wouldn’t be needed after 25 years meant, you know, that racial preferences wouldn’t be needed after 25 years.
In an essay written with Stewart J. Schwab, who had served as one of her Supreme Court clerks and is now dean of the Cornell Law School, Justice O’Connor argues that the majority opinion she wrote in the 2003 affirmative-action case should not be seen as imposing a deadline on the use of race-conscious policies or as relieving the need for more research showing such policies have educational benefits.
“When the time comes to reassess the constitutionality of considering race in higher-education admissions,” the essay says, “we will need social scientists to clearly demonstrate the educational benefits of diverse student bodies, and to better understand the links between role models in one generation and aspirations and achievements of succeeding generations.”
….
In her new essay, Justice O’Connor says, “That 25-year expectation is, of course, far from binding on any justices who may be responsible for entertaining a challenge to an affirmative-action program in 2028.” The task before those justices will be the same as the task before others who previously took up the issue, “applying abstract constitutional principles to concrete educational endeavors.”
Oh, so the importance of “diversity” was not “clearly demonstrate[d]” in Grutter? The meaning of the Constitution’s requirement of “equal protection of the laws” changes according to the most recent fads in sociology?
I am glad she is no longer on the Supreme Court,” said Roger B. Clegg, president of the Center for Equal Opportunity, which opposes racial and ethnic preferences and had submitted a friend-of-the-court brief on behalf of Barbara Grutter, the rejected white applicant to Michigan’s law school who was the plaintiff in the case.
Justice O’Connor, Mr. Clegg said, “is not a social scientist by training, and the problem with her jurisprudence is that she would too often try to be a social scientist rather than a justice. She tried to make policy rather than interpret laws.”
Terence J. Pell, president of the Center for Individual Rights, which provided legal assistance to Ms. Grutter, said, “I think the fact Justice O’Connor is doing this reflects the fundamental weakness of the opinion she offered: It failed to offer a principled basis for limiting — or even judging the effectiveness of — these practices.”
Actually, I think my friends Roger Clegg and Terry Pell were both too kind. In my first post on Grutter, written from San Francisco before I’d been able to read the opinions, I wrote:
how sad it is that SAnDra DAY ends her career (it is almost over, isn’t it?) by blasting a hole in the dike that heretofore had dammed (damned?) the waters of racial discrimination. But it is far too late in the day to criticize her for writing political, unprincipled opinions.
Who’d a thought that, standing in the hole she dug with that atrocious opinion, she’d keep digging?
