O'Connor voices hope for day affirmative action not needed
In a rare interview the day after issuing a landmark University of Michigan
ruling, a key justice reflects on racial preferences, her groundbreaking career
and life on the high court
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By Jan Crawford Greenburg Washington
Bureau
June 25, 2003
WASHINGTON -- A day after
announcing the Supreme Court's most significant decision on race in a
generation, Justice Sandra Day O'Connor said in a rare interview Tuesday that if
America provided adequate educational opportunities for young people, it could
someday achieve the goal of ending affirmative action in college
admissions.
Looking 25 years into the future, O'Connor said: "I hope it
looks as though we don't need artificial help to fill our classrooms with highly
qualified students at the graduate level."
"And if we do our job on
educating young people, we can reach that goal," she said, leaving no doubt that
the secrecy-shrouded court is aware of the dramatic impact its rulings can have
on American life. O'Connor made the comments in a wide-ranging, 40-minute
interview with the Tribune to discuss her new book.
O'Connor, who wrote
Monday's landmark affirmative action opinion for a 5-4 court, also acknowledged
that the decision went beyond the court's previous statements on the use of
racial preferences in education.
For the first time, a majority of the
court said colleges and universities could consider the race of an applicant to
get a diverse student body. It upheld an admissions policy at the University of
Michigan Law School, where officials used race as a "plus factor" when
evaluating applicants.
O'Connor's opinion borrowed heavily from the late
Justice Lewis Powell's opinion in University of California vs. Bakke, the 1978
case that had been the court's latest statement on affirmative action in
education. But she said Tuesday that she was unsure whether Powell, a moderate
conservative whom she deeply admired and considered a friend, would have joined
it.
"He'd probably say, `Well, you may have made too much about what I
had to say,'" O'Connor said, laughing at the thought. "I don't know. It was
fairly consistent with the view he expressed in Bakke. If he had been here,
whether he would've gone along with all of the nuances and declarations, it's
hard to say."
In the Bakke case, the court struck down the admissions
policy of a California medical school that had set aside 16 of 100 places for
minorities. But the court could not agree on why the program was
unconstitutional. Powell wrote a separate opinion, which no other justice
joined, that said the Constitution allowed admissions officials to consider race
as a "plus factor" in evaluating prospective students in light of a university's
compelling interest in getting a diverse student body.
The next
step
The court's decision Monday endorsed Powell's view but then went the
next step by embracing arguments by Michigan officials, business leaders and
military officers that diversity in education has meaningful benefits to
students and society.
Laurence Tribe, a Harvard Law School professor,
said Tuesday that O'Connor's remarks "very much reflect a recognition on her
part that the Powell opinion planted the seed, but the tree had to be
grown."
"[Powell's opinion] set only a general outline that still needed
to be fleshed out and filled in with a much more elaborate explanation of what
diversity is all about and how it might be expected to achieve the goals of
broadening the representation of racial minorities," Tribe
said.
O'Connor, 73, the court's first female justice, has long expressed
admiration and fondness for Powell and devotes a chapter to him in her new book,
"The Majesty of the Law." She called Powell "a model of human kindness, decency,
exemplary behavior and integrity" who was concerned in every case "about
reaching a fair and just result."
Change of heart
Powell's views
also could play a role in a case the court will announce Thursday on whether
states can prosecute people for having consensual homosexual sex in the privacy
of their homes. Powell joined a 1986 opinion upholding a similar Georgia
anti-sodomy law, a vote he told Tribe and others he later came to
regret.
Some observers have predicted that Powell's change of heart may
resonate with O'Connor in that case.
O'Connor said Tuesday that Powell,
as a legal thinker, probably cared "more about the ultimate fairness of the
resolution" of a particular problem "than is typical in deciding these abstract
principles of law."
"You're not dealing with Mary and Sam and little
Johnny. You're dealing with abstract principles," O'Connor said of deciding a
case. "He was a person who, although he did that, at the same time he cared
about little Johnny and Mary as well."
Role of women
During the
conversation in her chambers, adorned with Southwestern artifacts that reflect
her upbringing on an Arizona cattle ranch, O'Connor talked about her life, as
well as her views on the law and the role of women in shaping it.
She was
relaxed and animated as she mentioned several pioneering women who helped pave
the way for future female leaders, including herself. Her husband, John, sat on
a nearby couch reading a newspaper while she talked about how, as a young woman,
she balanced work and family, and succeeded in a legal world often hostile to
women.
Her comments on the affirmative action decision were a brief part
of Tuesday's interview. But they nonetheless were illuminating.
For
instance, in her opinion for the court, O'Connor said she expected that racial
preferences "will no longer be necessary" in 25 years.
But her remarks
indicate she offered the time frame as an expression of hope--not a definitive
endpoint, as dissenting justices and opponents of affirmative action had
suggested.
She also said the justices, in cases like the affirmative
action dispute, realize that how they resolve abstract legal issues can
significantly affect individuals.
"We often recognize that issues, the
abstract issues with which we deal, do have real life consequences and may
matter deeply to people," she said. "That's why you try to do the best you can.
But you can't decide it on the basis of, `Oh, gosh, a lot of people are going to
be affected.'"
O'Connor spoke passionately about the tremendous obstacles
women have overcome and the "sea change" in public attitudes about women's roles
in society. It was just 51 years ago that she graduated near the top of her
class at Stanford Law School, only to be offered a job as a legal
secretary.
Many young women today who encounter no real barriers to
getting a job find it "almost inconceivable" to imagine a time when that wasn't
the case, O'Connor said.
O'Connor eventually formed a small law firm in
Arizona, and then, with three small sons, quit when her baby-sitter moved to
California. That decision was difficult, she said, because she was "fearful I'd
never get another job in the legal profession."
She ran for public office
after her children were in school, eventually winning election to the Arizona
Senate and, later, to a state appellate court. When President Ronald Reagan in
1981 offered her a position on the U.S. Supreme Court--fulfilling a campaign
wish to nominate the first woman--O'Connor said she felt additional pressure as
a woman.
Hesitant to join court
"I've always said it's fine to be
the first, but you don't want to be the last," she said. "I was acutely aware of
the negative consequences if I arrived here and did a poor job. It made me
hesitant to say yes when the president called."
In her 22 years on the
bench, O'Connor has become, in the eyes of many, the court's most powerful
justice. A moderate conservative, she often provides the key vote on
high-profile cases in areas of race, religion, abortion and civil
liberties.
At times, she tempers the positions of her more conservative
colleagues, particularly in religion and voting-rights cases. And, as Monday's
affirmative action case made clear, she also breaks ranks to join the more
liberal side.
Because of her key role on such a closely divided court, an
O'Connor retirement now would be momentous and would give the Bush
administration an opportunity to change the balance of the court. She declined
Tuesday to say whether she had decided about her future.
But several
observers said her affirmative action opinion had the feel of a swan song and
speculated on whether she was considering retirement.
Tribe said O'Connor
clearly decided to write the decision broadly, endorsing Powell's view and
providing a theoretical framework for why diversity mattered.
"You might
speculate that if she were going to retire soon, leaving a landmark behind her
instead of just another little point on a confusing spectrum would be a sensible
way to take advantage of the experience and insight she has developed on all of
this," Tribe said.
"If she were firmly intending to stay for several
years, one could imagine she'd say, `We'll do this in three baby
steps.'"
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