In a New York Times op-ed, Yale law professor Justin Driver contends that “the last best hope to extend affirmative action [in university admissions] beyond the coming year” lies in Justice O’Connor’s statement near the end of her majority opinion in Grutter v. Bollinger (2003): “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest” in student body diversity. In order to try to bolster that prospect, Driver characterizes O’Connor’s “expect[ation]” as a “sunset provision” and argues that “the justices have repeatedly treated the 25-year sunset as legally significant.”
Even with the various reservations that he inserts, I think that Driver dramatically overstates his claim that “the justices” have regarded O’Connor’s “25 years” expectation as “legally significant.”
In Grutter itself, Justice Ginsburg and Justice Breyer signed onto O’Connor’s majority opinion, but Ginsburg, joined by Breyer, wrote separately to express her doubts that racial preferences could be sunset so soon: “one may hope, but not firmly forecast,” such a result, she wrote.
Driver states that in his dissent in Grutter Justice Kennedy “quipped that the decision could be understood as containing ‘its own self-destruct mechanism.’” What Kennedy actually wrote was: “As to the interpretation that the opinion contains its own self-destruct mechanism, the majority’s abandonment of strict scrutiny undermines this objective.” In other words, he was complaining (“in frustration,” as Driver acknowledges) that O’Connor’s expectation could not be taken seriously. Kennedy also joined the dissent of Chief Justice Rehnquist, who argued that O’Connor’s “discussions of a time limit are the vaguest of assurances” and would “permit the Law School’s use of racial preferences on a seemingly permanent basis.”
Driver observes that Justice Thomas, in his separate opinion in Grutter, “concurred” with O’Connor’s majority that the use of racial preferences “would be unconstitutional in a quarter-century.” But as Driver acknowledges, Thomas seems to have been trying to hoist O’Connor on her own petard. Thomas (joined by Justice Scalia) in fact wrote: “While I agree that in 25 years the practices of the Law School will be illegal, they are, for the reasons I have given, illegal now.” (Emphasis added.) He went on to ridicule the notion that anything meaningful would change in 25 years: “No one can seriously contend, and the Court does not, that the racial gap in academic credentials will disappear in 25 years.” Thomas (and Scalia) also joined Rehnquist’s dissent.
Driver also cites various comments by justices at oral argument over the years, but I don’t see what those comments establish. Justice Breyer’s statement that “Grutter said it would be good law for at least 25 years” rejects the notion that O’Connor imposed a 25-year sunset. And the statements by Chief Justice Roberts and Justice Scalia that Driver invokes were, in Driver’s words, merely “aimed to reveal that Texas had no intention of dropping its defense of affirmative action when the designated [25-year] time arrived.”
Perhaps more importantly, Driver fails to note that O’Connor contemplated that universities would be attentive to the fact that “race-conscious admissions policies … are potentially so dangerous” and would, she clearly hoped, adopt their own “sunset provisions” and “periodic reviews.” Indeed, she stated that universities “can and should draw on the most promising aspects of [the] race-neutral alternatives” that universities in states that banned racial preferences were developing. She expressly predicated her 25-year expectation on “tak[ing] the Law School at its word that it would ‘like nothing better than to find a race-neutral admissions formula’ and will terminate its race-conscious admissions program as soon as practicable.”
As Students For Fair Admissions points out, Harvard and the University of North Carolina have done nothing along these lines over the past nineteen years. It would make no sense to reward them by giving them six more years. Nor is that sort of legislative largesse within a proper understanding of the judicial role.
Read the full piece at the National Review here.