There was some talk recently about upcoming vacancies on the Supreme Court because some retirements were expected. However, the High Court's decision on affirmative action suggests that there are already vacancies, even though no one has resigned. We can only hope that, when President Bush gets a chance to nominate replacements, he does not fill an existing vacancy with another vacancy.
Justice Sandra Day O'Connor's majority decision upholding affirmative action in admissions to the University of Michigan Law School was her classic split-the-baby formula, washed down with rambling rhetoric, and making a mockery of the law. This decision provoked not only dissent from four other justices, but sarcasm and disgust -- as it should have.
Justice O'Connor's argument is hard to summarize because it consists largely of repeating unsubstantiated claims about the "educational benefits that flow from a diverse student body" and the need for a "critical mass" of minority students for their own educational needs and those of other students. She uses the phrase "compelling interest" to get around the 14th Amendment's requirement of equal treatment, much as earlier generations of justices used the phrase "interstate commerce" to evade Constitutional limits on the powers of Congress.
This exercise in verbal dexterity included the pronouncement that "race-conscious admissions policies must be limited in time," that "all government use of race must have a logical end point." But, having uttered these pieties, Justice O'Connor imposed no time limit nor defined any criterion for an end point. In other words, she talked the talk but she didn't walk the walk.
Justice Antonin Scalia's response was that the "mystical 'critical mass' justification" for racial preferences "challenges even the most gullible mind." He pointed out how academics who talk about multiculturalism and diversity in the courts have "tribalism and racial segregation" on their own campuses, including "minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies."
Verbal pieties and cynical realities have thoroughly corrupted affirmative action from the beginning. A quarter of a century ago, the Bakke case brought a great outpouring of noble rhetoric from the Supreme Court but the bottom line was that you could continue to have racial quotas, so long as you don't call them racial quotas.