Joel Mowbray

A Supreme Court justice some years ago wrote this stirring rebuke of racial preferences: “The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.”  That was Sandra Day O’Connor, but in 1989.  What a difference fourteen years can make.

  In a spate of news stories, O’Connor’s opinion in the Michigan racial preferences case was pegged as reflecting the views of Americans, most notably in the Washington Post.  The paper claimed that “the court came down roughly in line with public opinion,” by rejecting outright preferences and quotas, but supporting the nebulous goal of “diversity.”  Americans do, in fact, support “affirmative action,” but they support the bumper sticker catchphrase so long as no one gets preferential treatment based on race or ethnicity.  But that’s not the principle the Court upheld in its decision Monday.

  O’Connor, after having found racial preferences and quotas to be unconstitutional in four previous cases, suddenly decided with the Michigan case that now the Fourteenth Amendment doesn’t mean what she used to believe that it meant.  Though she helped strike down the undergraduate admissions program—which used a crude 150-point scale, where 20 points were given for being the “right” race—she was the swing vote in upholding the law school’s program. 

  Although reporters praised O’Connor for her keen “nuance,” the notorious centrist drew a distinction where there was no real difference.  The law school’s admissions program was almost identical to the undergraduate one, except it was smart enough not to attach “points” to each minority applicant.  O’Connor called it “not mechanical,” but all it really amounts to is a more subtle way to implement racial preferences.  According to several people familiar with both systems, there was little substantive differences in the results each produced.  The law school admissions officers still considered race; they just devised a plan more likely to snooker a court.

  Court watchers should not have been shocked that O’Connor would preserve racial preferences after repeatedly deeming them unconstitutional in the past.  (Granted, this was the first such case involving college admission, but the principles are the same as before.)  But while O’Connor may be inconsistent in her approach to racial preferences, she is remarkably consistent with her inconsistency on hot-button issues.

Joel Mowbray

Joel Mowbray, who got his start with, is an award-winning investigative journalist, nationally-syndicated columnist and author of Dangerous Diplomacy: How the State Department Threatens America's Security.

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