While President Bush’s Jan. 16 address opposing the University’s admissions policies appeared directed toward the entire nation and the nine justices of the U.S. Supreme Court, in reality Bush was only speaking to one woman: Justice Sandra Day O’Connor. Bush employed textbook measures of triangulation to curry the justice’s favor. Bush supported the goals of diversity, but simultaneously contended that the University’s method of implementation was the problem. He made no grand rhetorical sweeps nor ideological pronouncements. Instead, Bush fought against affirmative action on the margins. The strategy irritated Bush’s conservative base and further alienated minorities and liberals. But it didn’t matter; Bush deftly positioned his side for a June victory in Gratz v. Bollinger and Grutter v. Bollinger.
O’Connor, a 72-year-old Arizona native, holds the pivotal seat on the current Supreme Court. She is a maverick. Her conservative dispositions are unquestionable, yet she maintains an uncomfortable attitude toward the hard-driving ideologues on her right. Justices Antonin Scalia, Clarence Thomas and her former love interest at Stanford University Law School, Chief Justice William Rehnquist, are a breed apart from the conciliatory O’Connor. When former President Ronald Reagan selected O’Connor as his nominee for the high court, the religious right was deeply upset as she was moderately pro-choice, and therefore a threat to their influence on policy making.
And she has proven to be such a threat to the hegemony of this political force over the past two decades. O’Connor’s most notable dissents have centered on the separation of church and state and privacy issues.
This year she will be faced with the question of race-based affirmative action admissions in higher education, and could easily be the heroine for either team. As the centrist in this debate, and the only justice whose decision has not practically already been made, the lawyers will walk into the court room April 1 with formulated arguments directed specifically toward O’Connor. In addition, interest groups from all sides are filing briefs in a language that is meant to sway her. They all have the same mantra of “racial diversity is good” and then go on to say that affirmative action is either detrimental or vital in the attainment of this end.
It is difficult to assume that any group of activists on either side will bring O’Connor to their conclusion, and in some instances, efforts to convince this undecided judge may actually be counter-productive.
As the attorney for the student interveners, Miranda Massie, told the U.S. 6th Circuit Court of Appeals, “We think the University of Michigan Law School needs more affirmative action, not less.” Massie’s claim may be quite reasonable, but in this landmark case it could sway O’Connor to write an opinion devastating to the future of affirmative action and the University.
However, it will be difficult for the conservative bloc to woo her over to its side as well. In 1986 she stated, “although [affirmative action’s] precise contours are uncertain, a state interest in the promotion of racial diversity has been found sufficiently ‘compelling,’ at least in the context of higher education, to support the use of racial considerations in furthering that interest.” Though the intensity of the interveners and the University’s argument may force her to shy away from the opinion of Justices John Paul Stevens and Stephen Breyer, given her reluctance to make concrete, permeating policy changes as well as her outspoken feelings on racial preferences, it is unlikely she would vote for a sweeping abolition of affirmative action. As University of Chicago law and history Prof. Dennis Hutchinson commented, “She is someone who has a real lack of appetite for framing large issues in a large way … She doesn’t want to end a 20-year career on the court by being the angel of death for affirmative action.”
Taking her motives and her opinions into consideration, it is highly likely that O’Connor would support a Bakke-esque decision supporting the idea of affirmative action but not the University’s policies while the ideologues to the left and right of her come down one way or another.
The conventional wisdom maintains that if you hope to win a case at the Supreme Court, you must tailor your arguments to appeal to O’Connor’s sensibilities. George Washington University law Prof. Jeffrey Rosen declared, “We are all living now in Sandra Day O’Connor’s America,” meaning that in a broad sense, the high court has become over politicized, and far too often one can predict how any of the other eight justices will vote based on their personal political views. Though O’Connor is hardly the model of how a Supreme Court justice should be removed from external political pressures, her opinions are liberated enough to provide for a decision based on a genuine debate of a proper examination and interpretation of the Constitution.
In essence, this is how the current Court operates. Both the liberal and conservative bloc have their preconceived estimations on any given case, and then it is up to O’Connor to make up her mind and throw her support to one side sealing its victory. In the upcoming affirmative action cases, the judicial branch of the American government will be her stage, and the University must make a strong, convincing argument building off her already stated support for the intended effect of racial preferences in order to be on the winning side of what will inevitably be a 5-4 vote.