Nanny State

Anticlimactic Action

Does the Court give us the law we want?


"All the way to the Supreme Court." When a big idea is really big, too big for politicians, ballots, and voters, that's how people say it will be decided. It will be argued "all the way to the Supreme Court." Once there the Supremes will don their robes, engage their mighty brains, and divine a solution that escaped us mere mortals.

Except they almost never do. They split the difference. As the University of Michigan affirmative action decisions show, the Supreme Court practices jurisprudence Homer Simpson could deliver. You got this side, you got that side; give a little of each to both and head to Moe's.

For what seemed a decade, affirmative action observers described one of the Michigan cases as one that would give the court a clear choice on affirmative action. The undergraduate school used a point system, a real, honest to goodness metric, which explicitly gave bonus points to minorities. Not surprisingly, white applicants felt this was unfair. Identical transcripts could produce a rejection letter solely based on race.

For opponents of affirmative action this looked like a slam-dunk. The university couldn't argue that race was just a one of a plethora of factors that went into the admissions hopper. In some cases, even if it was only a handful, race was clearly the deciding factor. It was right there in the numbers.

As a result, liberal supporters of affirmative action were worried. Lose the Michigan case and we're but a bus ride from separate but equal and Jim Crow. The court was in the tank for George W. Bush, the man they put into office. Join hands and exhume Pete Seeger.

But in reality the Bush-Gore decision was the exception that proves the rule. The rule is that both sides usually win a little. But there had to be only one president (even if a co-presidency with Al Gore in charge of Iraq must sound pretty good to Karl Rove about now). The justices rarely face such winner-take-all scenarios; the bigger the issue, the more they'll torture out a half-measure.

So a newly found right to privacy undergirds the court's ongoing abortion compromise, which more or less agrees with the public's view of the issue. A grown woman can do what she wants with her body and money once she finds out she is pregnant, but the states and feds get to have a say if other conditions obtain or she dawdles. Positively Homer-esque in its simplicity—which may explain why only the radical ends of the abortion debate are unsatisfied by it.

In the immediate wake of the Michigan decisions, both sides must be a little disappointed. Supporters of affirmative action weep for the defeat they knew was coming on explicit racial point systems. Opponents of affirmative action must lament what the court did with the Michigan law school case, which keeps race alive as an admissions factor thanks to a bit of sleight of hand by university lawyers.

Very soon after the university found itself the subject of legal challenges to its admissions policy, it began to make the argument that it wasn't valuing minority students more than white students. No, its value was a diverse law school, a diverse student body being instrumental to giving the best possible education to students of all races. In other words, turning down qualified white kids was necessary to give the white kids who did get in the best possible education.

This is genius. The law school's policy didn't hurt white students, it helped them. Such inside-out thinking accompanied by the lack of any explicit numerical point system is just the kind of thing a Supreme Court can rally behind and declare the new middle-of-the-road standard—which is exactly what happened.

Writing for the 5-4 majority, Justice O'Connor said the Constitution does not "prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."

Opponents of affirmative action are already noticing this means the court has signed off on diversity as a legitimate educational goal, so long as it meets the freshly minted "narrowly tailored use of race" test. Affirmative action wasn't killed; it just has to dress itself up and be a little more careful.

Of course, the test that matters is the one the general public applies to the decisions. Quotas or any kind of hard racial bean-counting have always been losers with a cross-section of Americans, so the undergrad decision scans. The court's fractured legalese on the law school decision may also pass public muster, however. If the decision is interpreted to be a clumsy attempt to say, "Listen, when you are picking your team try to include a bunch of different kinds of people 'cause it more fun that way," then it might find more adherents than either side of affirmative action debate would like to admit.