After the Supreme Court
June 27, 2003
Civil rights organizations have reason to celebrate the U.S. Supreme Court’s narrow 5-4 vote for diversity as a “compelling interest” in academic institutions. However, they should also be wary about the high court’s 6-3 ruling that the University of Michigan’s use of race in its “point system” admissions process was unconstitutional.
In both decisions, Justice Sandra Day O’Connor provided the majority’s key swing vote. While there might be some irrational exuberance over her vote to preserve affirmative action, the Supreme Court’s decision is only valid until the next series of retirements.
O’Connor and John Paul Stevens, key votes in the 5-4 vote, have been often cited as likely to retire. Should either of them depart, the Bush Administration would have an opportunity to appoint a justice, who could easily swing subsequent decisions for or against affirmative action.
Before the president considers his next appointment to the court, he should read some of the amicus briefs filed on behalf of the University of Michigan.
Many arguments were made for affirmative action’s role in advancing diversity and as a remedy for discrimination. However, the court found surprising support for affirmative action from the ranks of business and the military.
Retired uniformed and civilian leaders of the military (including an undersecretary of the Army) argued that affirmative action in the officer corps was essential to ensuring a diverse military and national security. Race-conscious admissions in ROTC and military academies have produced figures like Secretary of State Colin Powell and former Army Chief of Staff Eric Shinseki — two architects of America’s Iraq wars in 1991 and 2003.
Also submitting arguments were some Fortune 500 economic powerhouses who have both a social and economic stake in supporting affirmative action. These corporations followed a precendent set by the California corporations that opposed Proposition 209 in 1996.
While Proposition 209 was passed, eliminating state-sanctioned affirmative action, the battle was costly for state Republicans. They became an extinct species in all of California’s statewide constitutional officers last year. That should be a compelling interest for a Republican president trying to win the state next year for the first time in 12 years.
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