Special Report

Michigan’s Day in Court

Affirmative Action Tuesday at the Supreme Court was marked by protests, posturing, and a few rays of hope.

By 4.2.03

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Despite the war, neither protesters nor Washington bigwigs forgot about Supreme Court's oral arguments last Tuesday. The nine justices were debating two cases on the constitutionality of affirmative action. The first dealt with the University of Michigan's law school admissions policy, the second with the university's undergraduate admissions. High-school students lined the streets blocks in front of the Supreme Court -- no doubt thrilled to be missing school. Many of them were chanting, "Hell no! / We won't go back to Jim Crow!" I knew it was going to be a long day.

The NAACP had gone all out, organizing a massive turnout of demonstrators in the biggest protests since during Bush vs. Gore. The most popular of its professionally made signs read, "Save Brown vs. Board of Education: Build the New Civil Rights Movement." Others vowed to defend affirmative action "By Any Means Necessary." I wondered what would happen if pro-life demonstrators, say, called on people to oppose abortion "by any means necessary."

Fortunately, the mood of the demonstration was calm, even placid. Demonstrators chanted, listened to speakers, and sang folk songs. Perhaps one reason for the sedate demeanor was that not a single protester seemed aware that there may exist legitimate opinions different from his. The demonstrators displayed a rigid certainty that can only come from ignorance of opposing beliefs.

Moreover, these protesters think differently than their anti-war brethren. They are not guided only by hatred of Bush, but by a deeply felt belief that they are fighting the latest in a long line of battles going back to the Civil War. They believe that they have been proved right time and time again -- with the abolition of slavery, with the end of Jim Crow laws, and with the passage of the Civil Rights Act of 1964. The connection to the old civil rights movement is strong, and the demonstrators didn't hesitate to use its history for their own purposes.

Brown vs. Board of Education, for example, served as bait: If you support desegregation, they say, you necessarily support race-based admissions policies. Another poster read, "We Have Come A Long Way Since Jim Crow…Don't Send Us Back!" If you don't like Jim Crow, the argument goes, you necessarily support the continuation of affirmative action. Finally, the same is true with the Civil Rights Act of 1964. One smiling old man held a sign that said, "I was here in 'sixty-four!! USA needs affirmative action now even more!!" Support for the old civil rights movement automatically makes one a supporter of the new "civil rights." Never mind that affirmative action was never a part of the civil rights struggles for racial equality that marked the 1950s and early '60s.

Separate from the NAACP protesters, and occupying their own niche of the demonstration, plenty of angry Bush-hating protesters showed up outside the Supreme Court as well. Their signs were handmade, with eloquent and charming messages written on them, such as "F--- Bu$h," "President Bush: Anti-Affirmative Action War-Monger" and a rather convoluted one, complaining that the "hidden affirmative action" was "511 years of White Supremacist, Capitalist Imperialism." These were just the regular type of militants whose political opinions are drawn solely and completely from their spitting hatred of the current Administration. Perhaps there are still places in the world where the rhetoric these people employ is considered striking. Perhaps there are still places where the ideas these people spout are considered profound. And, perhaps, these people should go there.

I FINALLY PUSHED THROUGH THE PROTESTERS, got into the Court, and took my seat. The mood inside was tense; the watchers, and the lawyers, were hushed. There was a real sense of history in the making, only made more intense by the presence of legendary figures watching intently from the back of the room. By leaning backwards, I could see Rosa Parks sitting motionless in her wheelchair, her head turned upward.

The trial began, and the Solicitor General Ted Olson's team got in about two sentences of its opening statement before being interrupted by Justice Sandra Day O'Connor. Those two sentences would be about the longest prepared statement either side would get to read. The two hours of oral argument would mainly consist of question and answer session between the lawyers and the justices.

You could feel the courtroom straighten up to hear O'Connor's first question. Along with Justice Anthony Kennedy, O'Connor is a swing vote in the Michigan case, and any implied opinion contained in her question could give a hint as to which way she was leaning. Unfortunately, O'Connor questioned the "absolute" nature of the government's argument, commenting that the United States had recognized race as a criterion in some settings. In the first half hour, Olson and his team were bombarded with skeptical questions at every turn.

This line of attack was not necessarily damaging -- the justices were primarily probing whether race-based policies would be acceptable under any circumstances, and Olson maintained a clear position in all his responses. More worrisome was that the queries from O'Connor and Kennedy suggested these key justices were dubious of the government's position.

Admirably, Ted Olson's team stuck to its guns. When faced by the argument that affirmative action helps students of different races overcome stereotypes, Olson argued forcibly that affirmative action perpetuated stereotypes. When hostile justices questioned Olson about the extent of his position, he calmly answered, "Yes, our position is that such a program is unconstitutional" or "I believe we need to get away from the idea that there is a 'right' number of minorities to be admitted." In the end, Olson's honesty and clarity seemed to win him support among the more moderate judges.

Next it was the University of Michigan lawyers' turn to get roughed up. To get around the appearance that Michigan admissions policies involve quotas -- already declared unconstitutional by the court -- the university's lawyers said these policies weren't at all designed to admit any fixed percentage of minorities. Rather, the university was only attempting to attain a "critical mass" of minorities, at which, so the argument went, the minorities would feel free to express themselves as individuals. The term "critical mass" was subjected to more than a little ridicule. After swing-vote Justice Kennedy attacked the concept as a "synonym for a number," the liberal Justice Ruth Ginsberg felt the need to come to the term's defense, arguing that it was a "sociology term" -- and therefore, evidently, immune from ridicule.

But this now became Antonin Scalia's show, as he demonstrated again why he is considered the most intellectually nimble justice on the Supreme Court. He blasted the University of Michigan lawyers for already entering "quota land," arguing that it didn't matter whether the university had a specific percentage of students in mind to achieve "critical mass" or simply a range of percentages.

Scalia probably asked more questions than three or four of the other justices combined. A few times, Scalia abandoned the standard question format of framing his remarks, and simply stated his opinion. By the end of the second case, examining the Michigan's undergraduate admissions, even liberals such as Justice Souter were voicing skepticism about the university's program.

If conservatives win this contentious case, they'll above all have Ted Olson and Antonin Scalia to thank. Those two had no effective liberal counterparts, and worked fruitfully to turn many potentially damaging lines of questioning into boons for the government's side. They most likely managed to net the vote of Justice Kennedy, who late in the argument called Michigan's admissions program a "disguised quota." Which means that, barring a possible reversal of opinion from Justice Souter, the fate of affirmative action rests with Justice O'Connor.

The court is set to issue an opinion in late June.

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