These past cases were the handiwork of moderate Republican-appointed justices. Roe’s author, Justice Harry A. Blackmun, was elevated to the court by President Richard M. Nixon, as were two others in the seven-justice majority that joined his opinion. (Another moderate justice who voted in favor of Roe, Potter Stewart, was named to the court by Republican Dwight D. Eisenhower.) The three-justice bloc that helped preserve Roe’s essential holding in Casey consisted of Sandra Day O’Connor and Anthony M. Kennedy, appointed by President Ronald Reagan, and David Souter, appointed by President George H.W. Bush.
In 1978, it was Justice Lewis F. Powell Jr., another Nixon appointee, who wrote the controlling opinion in Bakke that authorized schools to use race as a “plus factor” while assembling a diverse student body, but only via “holistic” individual evaluations, not numerical quotas. Twenty-five years later, in Grutter, O’Connor cast a majority-making fifth vote in favor of Powell’s view, and wrote an opinion based on it for the court.
When the court announced that decision, President George W. Bush said it struck a “careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law.” His Republican administration had been internally divided between conservatives who favored “color-blind” admissions and senior Black officials, such as Colin Powell and Condoleezza Rice, who wanted to preserve affirmative action.
One way to read this half-century of history: There are no more Republican-appointed moderates on the court, at least not of the Powell-O’Connor variety, and not too many moderate Republicans anywhere else, either.
Yet even those who regret what a six-justice conservative majority did on Thursday must acknowledge that the Bakke–Grutter doctrine gave them plenty to work with.
The interest in diversity Bakke and Grutter recognized was an unavoidably amorphous one, more about shaping campus conversation than making up for historical injustice inflicted on Black people. In the zero-sum admissions competition, how can race be a plus-factor for some without being a minus for other meritorious candidates, including, as the organization that sued Harvard and the University of North Carolina emphasized, Asian Americans — a group that has also experienced official discrimination?
Remedying past discrimination would have been a far clearer, more historically honest, rationale for race-conscious admissions, as Thurgood Marshall argued in his Bakke opinion. In hindsight, it might also have been easier to time-limit such a policy, because the case for race-conscious admissions would arguably diminish as the social position of its intended beneficiaries measurably improved.
To be sure, the political culture has treated affirmative action as a racial justice policy, part of what is now a movement for “diversity, equity and inclusion,” just as Roe came to symbolize women’s autonomy and reproductive rights even though the actual opinion turned on privacy rights.
And yet that is not quite what the justices who wrote Bakke and Grutter envisioned. A Virginian struggling with the true legacy of his state’s history, Lewis Powell, a White Virginian, balked at such strong medicine for “societal discrimination,” and fretted over the unfairness “quotas” might do to “innocent” people like White medical school applicant Allan Bakke. O’Connor’s Grutter opinion channeled Powell’s good intentions but also his ambivalence. She said race-conscious admissions were a necessary but also potentially “dangerous” measure, whose phasing out after 25 years would be reasonable to “expect.”
In his opinion for the court on Thursday, Chief Justice John G. Roberts Jr. invoked these two justices’ qualifications and reservations in his opinion striking down the Harvard and University of North Carolina policies — implying that it was possible to do so without expressly overruling Bakke or Grutter.
The ruling lands in a far less bipartisan political era than the ones that produced the court’s affirmative action compromises. A backlash like the one that greeted the Dobbs abortion ruling is unlikely, though; whereas a clear majority of Americans supports legal abortion, the latest Pew Research Center poll shows respondents disapproving of race-conscious admissions 50 percent to 33 percent, with significant minorities of Black and Latino people among those opposed. An AP-NORC poll showed two-thirds of adults did not want the court to “prohibit” race-conscious admissions — but only 31 percent think race should be “important” to admissions. (More than twice that percentage called grades and test scores “important.”) The moderate Powell-O’Connor legacy might be gone. The mixed feelings the two justices expressed remain.
