(The Return of) Ignatz, by Sam Heldman

Monday, March 31, 2003

Supreme Court predictions
Time to go public with my prediction on the U. Mich. admissions cases, to be argued on Tuesday: Grutter (law school) and Gratz (college). The U. won both cases below; its admissions policies were upheld. I won't take the time to give you all the links to lower court decisions, etc.; you can get that, and much more useful information, from Goldstein Howe, and you can get all the links to news reports and op-eds that you can stand at How Appealing.

Call me crazy if you wish -- and I do recognize that my relative success in these predictions could come crashing down around me in late June if not sooner -- but I'm betting on a split outcome, AFFIRM in Grutter (i.e., uphold the law school plan) and REVERSE in Gratz (i.e., strike down the college plan). The difference is in the facts as to what the policies are. To oversimplify, the college plan is more like a mathematical formula with a "plus" for minority, and the law school plan is more nebulous. (You can find the policies, linked in the first paragraph of a previous post of mine here).

Here's my reasoning -- and I swear that I had formulated it even before Howard Bashman mused in the direction of the first step of the reasoning here late last night. The key is that Justice O'Connor -- who is, everybody knows, the deciding vote here -- needs to get a majority that she can write for, rather than just providing the fifth vote for a bottom-line result and an idiosyncratic concurring opinion for herself alone. Why does she need that? So that her vote in these cases will actually mean something, rather than just being a placeholder that will last only as long as it takes for the issue to reach the Court again in two years after she has retired. Being human, she won't want to be irrelevant on this issue; so she won't want law students to say, twenty years from now, "did you know that there was actually a case between Bakke and the decision in 2005 that outlawed race-conscious acts forever, but the case was such a muddle that nobody knew what its holding was?"

The next step is my belief that Justice O'Connor doesn't think that all consciousness of race in university admissions is unconstitutional. I cannot be certain, but that's my bet.

The next step is my belief that there's no way that C.J. Rehnquist, and Scalia and Thomas, JJ., along with Kennedy, J., are all going to sign on to a namby-pamby opinion that allows some use of race-conscious admissions policies but strikes down these particular ones. At least some of those Justices won't go along; so Justice O'Connor can't write for a majority in that direction, at least not if she wants to actually settle these questions somewhat broadly. (Maybe she could write for a conservative majority, if she was willing to say "maybe some race-conscious policy would be ok, but we don't decide that broad question today"; but that, too, would simply provide the opening for Scalia et al. to take a case again in a couple of years, when Justice O'Connor has been replaced by a Bush appointee, and say "the answer to that question left open in Grutter is, NO. NEVER." Again, O'Connor's play here is to fight irrelevance of that sort.)

So Justice O'Connor has to go with the "liberals" in at least one of the cases in order to write an opinion that settles anything (if, as I presume, her way of settling things is not to say "NO AFFIRMATIVE ACTION IN ADMISSIONS"). And I think that the more likely candidate is the law school case, because it's more like the somewhat nebulous "Harvard Plan" that was more or less approved in Bakke. The college plan, though, will be struck down. I think it possible even that the quasi-liberals and Justice O'Connor will avoid the constitutional issue in the College case by saying that the college plan violates Title VI as written but could be made ok with a little tweaking. In any event, AFFIRM Grutter and REVERSE Gratz.

posted by sam 6:23 AM 0 comments


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