At High Court, How They Rule Is a Matter of Opinion

WASHINGTON —  The Supreme Court, as with many families, has some members who believe in setting clear rules and others who say the right action depends on the circumstances.

Lawyers who practice before the court talk about justices who are “rules” people and others who are “balancers.”

The court’s decision Monday upholding affirmative action offers a classic example of the difference. Justice Antonin Scalia is a rules person. He once wrote a law review article titled: “The Rule of Law Is the Law of Rules.”

He relied on a familiar rule Monday. The Constitution says the government may not discriminate against any person “by reason of their skin color,” he says. Therefore, any public program, including a university’s affirmative action policy, is unconstitutional if it treats people differently based on their race.

Justice Sandra Day O’Connor, however, is a balancer who strives for a fair result in each case. For her, the dispute over affirmative action was not a “yes” or “no” question. The right outcome depended on the facts and circumstances, she reasoned.

Scalia’s rigid rule would close the door of opportunity for too many aspiring black and Latino students, she said. But O’Connor has never gone along with the liberal justices who uphold affirmative action generally as a type of “benign” discrimination.

Instead, O’Connor announced a balanced, middle approach. She voted to approve the University of Michigan Law School’s use of race as one factor weighing in favor of minority applicants, but she voted to strike down the university’s undergraduate admissions policy because race was too big a factor.

A “highly individual holistic review” that weighs a student’s race is constitutional, O’Connor said. A “mechanized selection” system that assigns points based on a student’s race is not, she said.

Justice Clarence Thomas, like Scalia, seems to prefer clear rules, and he joined Scalia in saying that affirmative action is unconstitutional, no matter how it is practiced.

Justice Stephen G. Breyer, like O’Connor, is a balancer. He joined O’Connor in both opinions Monday. He voted to uphold the law school policy because it weighs the race of applicants fairly, but he voted to strike down the undergraduate admissions policy because it is too race-driven.

Legal experts were left debating whether Monday’s opinions amounted to a victory for principle, or for fuzziness.

Some admitted they could not easily define the distinction between a school that evaluates applicants with the goal of enrolling a “critical mass” of minority students, which was upheld, and an admissions policy that uses a point scale to enroll a reasonable percentage of minority students.

“The difference is not all that clear. It is a difference of degree,” said Samuel Issacharoff, a Columbia University law professor.

He said he was pleased to see that the court had preserved affirmative action, but he added that he felt a “certain dismay to see the endorsement of a nontransparent solution.”

A university policy that spells out rules for evaluating minority applicants could be challenged as unconstitutional, he said. Yet, a university that does the same, but obscures its actions, is immune from challenge, he noted.

Stanford law professor Pamela Karlan said she was pleased by Monday’s outcome, and the approach endorsed by O’Connor. “Talking about [enrolling enough minority students] is not necessarily a good thing. That was also one of the virtues of Justice [Lewis F.] Powell’s opinion in the Bakke case,” she said, referring to the landmark 1978 case of Allan Bakke vs. the University of California. “You can take race into account, but don’t be too blatant about it.”

Former Solicitor General Walter Dellinger said that in teaching his law classes at Duke University, he used to rail about the “logical flaws” in Powell’s opinion. If the University of California’s race-based admissions policy was unconstitutional, as Powell said, why did he urge colleges to adopt policies that give preferences to minority applicants as individuals?

“A quarter of a century later, I have the maturity to see how profoundly wise that opinion was,” Dellinger wrote Tuesday in a column for Slate magazine. He praised O’Connor’s opinion for its “basic good sense.” She had preserved affirmative action for another generation, yet rejected rigid point-driven systems that make race the only admissions factor.

Balderdash, responded Dahlia Lithwick, Slate’s legal correspondent. “O’Connor’s basic ends-justifies-the-means approach to upholding the principle” fails the test of “intellectual honesty,” she wrote. “Her use of all the catchwords -- ‘individual consideration’ and ‘flexible’ and ‘nonmechanical’ -- all simply mean that when programs give minorities a boost informally, with a wink rather than out in the open, these programs are legitimate.”

The debate is likely to go on for years. Lawyers debated the Bakke decision for decades before challenges to it moved through the federal courts.

On Thursday, the court will wrap up its term by issuing decisions in its five remaining cases. They include a Texas case that could be a landmark for the gay rights movement.