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In Grutter v. Bollinger,the Supreme Court’s most prominent beneficiaries of affirmative action disagree about its value — and about whether others are entitled to it. Justice Sandra Day O’Connor got her job on the Supreme Court in part because she is female. Her canny exploitation of her role has made her the most powerful woman in the United States. In Grutter,one of two decisions last week addressing the use of racial preferences by the University of Michigan, O’Connor did not use that power to bite the hand that fed her. Writing for the majority, she held that the government has a “compelling interest” in achieving diversity in higher education. Then there is Justice Clarence Thomas, the second African-American on the Court. Dissenting in Grutter,he chose to cite a speech that the abolitionist Frederick Douglass gave in 1865. “Worm-eaten” apples, Douglass observed, fall from trees. “And if the negro cannot stand on his own legs, let him fall also.” THE MOST QUALIFIED Stark differences today between O’Connor’s and Thomas’ views on affirmative action may have been foreshadowed years ago. Listen to what was said by the presidents who nominated them. Ronald Reagan made no secret of the fact that O’Connor’s gender was key to her selection for the Supreme Court. During his first presidential campaign, Reagan had promised that he would appoint to the Court “the most qualified woman I can find.” She turned out to be O’Connor, who became the first female justice in 1981. George Herbert Walker Bush, in comparison, hid the ball. In selecting a replacement for Justice Thurgood Marshall, Bush claimed that he just happened to select another African-American. “The fact that he is black and a minority has nothing to do with this,” Bush said. “He is the best qualified at this time.” No surprise then that in Grutter,O’Connor elevated diversity to the level of national security in terms of importance. Thomas, on the other hand, described the theory of justice that propelled his career as “faddish racial discrimination the Constitution clearly forbids.” (In the related case, Gratz v. Bollinger,the majority of the Court, including O’Connor and Thomas, found that a more heavy-handed undergraduate admissions program went too far.) ‘RACIAL AESTHETICS’ The constitutional issue before the Court in Grutterwas whether preferences for African-Americans and Hispanics as applied by the University of Michigan Law School furthered an important government interest. O’Connor answered yes, because of “the educational benefits that flow from diversity” and because selective law schools train future leaders of society. Thomas believes that the first woman on the Court is too hung up on “racial aesthetics.” Yet his dissent reveals that he is an equal opportunity malcontent: He doesn’t think much of “overmatched” minorities who benefit from affirmative action, but apparently white people are a major drag as well. Last month Thomas explained to a group of inner city kids that they should not feel bad about attending what is, for all practical purposes, a segregated school. “Are you telling me you all can’t learn with the people in this room? You know you can,” he told the Washington, D.C., high school students. In Grutter,Thomas took this point to its illogical conclusion. He cited two articles from education journals as “growing evidence” that integrated schools “actually impair learning among black students.” He did not, however, express an opinion as to whether Brown v. Board of Educationshould be re-considered. As Georgetown Law professor Mari Matsuda has observed, there is something sticky about race. Justice Thomas tries to downplay its significance, but his views seem saturated with his own experiences. The subtext overwhelms the text. IN MARSHALL’S SHOES O’Connor seems to get it. In a tribute to the Court’s first black member, she wrote “Justice Marshall brought a special perspective. At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences.” O’Connor has said that Marshall’s stories about discrimination influenced her “profoundly.” There was a moment this term when Thomas stepped, for a moment, into Marshall’s shoes. The Court heard oral argument on whether cross burning could be criminalized without offending the First Amendment. Thomas waxed eloquently on the “reign of terror” signified by the burning cross and noted that it was “unlike any symbol in our society.” The New York Timesreported that the other justices gave Thomas “rapt attention” and that he appeared to have shifted the balance in favor of allowing the ban on cross burning. Indeed, the Court subsequently voted 6-3 in Virginia v. Blackthat states can make cross burning a crime. Justice O’Connor wrote the majority opinion in that case also. Justice Thomas’ comments on cross burning drew attention precisely because they were unusual for him. Thomas rarely finds for minority appellants in any race case, but he reserves the most disdain for his fellow beneficiaries of affirmative action. “When blacks take positions in the highest places of government, industry, or academia,” he wrote in Grutter,“it is an open question today whether their skin color played a part in their advancement.” Actually, the question is not open. For blacks and Hispanics in selective law schools, and minorities and women on the Supreme Court, the answer is yes— affirmative action played a major role. Merit is not the issue: One has to be qualified to be eligible for affirmative action in the first place. The real open question is why special consideration for under-represented minorities bothers Justice Thomas so much, given the history of white supremacy and patriarchy in the United States. Thomas professes concern that diversity candidates “cannot succeed in the cauldron of competition.” Well, maybe my story can help him resolve his stigma issue. I am an African-American who was admitted to Yale College and Harvard Law School on the basis of affirmative action programs. I graduated from both of those institutions cum laude. Being a minority helped me get hired to teach at George Washington University Law School. Since then, the students have voted me Professor of the Year three times, and my scholarship has been published in some of the academy’s most prestigious journals. OK, so obviously I meet the one essential requirement for law professors: I have a big head. As a poster child for the success of affirmative action, however, my name is Legion. Derek Bok and William Bowen, former presidents of Harvard and Princeton, respectively, completed an exhaustive study of affirmative action at the nation’s most selective schools. They found that blacks who were admitted to those schools through affirmative action were more likely to go to graduate school and earned higher incomes than their white counterparts. The point is that no one, including Justice Thomas, should feel one bit stigmatized by affirmative action. It opens doors and gives people of color the chance to show their stuff. TO SEE THE WORLD DIFFERENTLY Indeed, as Harvard Law professor Randall Kennedy has observed, there is more potential for racial stigma when minorities are absent from elite universities, which is the case without affirmative action. I wonder what my white students would think about African-Americans and Hispanics if none were present because they couldn’t get admitted to our law school. To contrast O’Connor’s opinion in Grutterwith some of her earlier writing about race is to see that she has come a long way. In her tribute to Marshall, O’Connor noted that, growing up in Arizona, she was not exposed to racial tensions. Marshall’s stories were powerful enough, O’Connor wrote, to “by and by, perhaps change the way I see the world.” Diversity matters, even in the lofty chambers of the Supreme Court. I’ll bet that Justice Marshall is looking down on O’Connor with pride and respect. When he gazes upon Clarence Thomas, I suspect that he feels something quite different. Paul Butler is a professor at George Washington University Law School. He can be reached at [email protected].

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