WASHINGTON -- There were 13 different Supreme Court opinions Monday in the two affirmative action cases. But the only ones that mattered were those of Justice Sandra Day O'Connor, who said unequivocally that race can be a factor in university admissions.
For the first time in 25 years, when the court issued its muddled decision in the Bakke case involving the University of California Medical School at Davis, it is now clear that seeking diversity in a student body is a legitimate reason to consider an applicant's race, albeit carefully.
O'Connor, 73, sometimes pilloried by her detractors on the right and the left as a wishy-washy, fence-straddling, inconsistent compromiser, ruled for affirmative action in one University of Michigan case and against it in the other. But delighted advocates of affirmative action saw no inconsistency.
The former rancher and state legislator wrote for a five-justice majority that student body diversity improves education and creates an even stronger military, citing a brief from retired military officers referring to affirmative action programs at the military academies.
Michigan's law school's attempt to include blacks, Hispanics and other minorities was permissible because it was "flexible," and included a "highly individualized, holistic" review of each applicant's file, she said.
O'Connor came down against the completely different approach of Michigan's undergraduate admissions committee, a highly mechanical formula that awarded automatic "points" for diversity and gave racial diversity much greater weight than other kinds.
In that 6-3 decision, Chief Justice William Rehnquist assigned himself the majority opinion, as if to outflank O'Connor's majority opinion in the other case. But even there it was O'Connor's concurring opinion, joined by Justice Stephen Breyer, that made the difference between four votes and a majority and therefore controlled the outcome.
The legitimacy of diversity as a last surviving rationale of affirmative action was raised in the Bakke case in 1978 by Justice Lewis Powell, another fence-sitting swing voter whose courtly old-world Virginia moderation may have had an impact on his Westerner colleague O'Connor.
But Powell, unable to stitch together a majority in Bakke, spoke only for himself, leaving the lower courts to battle over the case's significance. O'Connor, citing Bakke repeatedly Monday, finally erased all doubt.
"My God, what a hero," wrote former acting Solicitor General Walter Dellinger Monday in a commentary. "She has it exactly right. She doesn't simply continue the Powell tradition. She builds upon it and writes as persuasive an argument as the (Supreme Court has) ever seen for racial diversity and for the legitimacy of allowing consideration of race to play a role in admissions."
For now, O'Connor is once again the subject of retirement rumors and could leave the court as early as this week. Conservatives have been working for years to make sure that such a "mistake" never happens again during a Republican presidency, so whoever replaces her is unlikely to see diversity in the same light.
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