In approving racial preferences in admissions at the University of Michigan Law School in Grutter v. Bollinger, Justice Sandra Day O’Connor’s opinion for the Court tacitly endorsed an essentially permanent regime of racial balancing through preferences while purporting to ban both racial balancing and permanent preferences. At the same time, in striking down the all-too-transparent point system used to award racial preferences by the university’s undergraduate school, in Gratz v. Bollinger, the justices signaled that concealment of the nature and magnitude of racial preferences–which has long been indispensable to their political sustainability–will henceforth be the way for selective universities to insulate them from legal challenge as well.
Taken together, the decisions reflect the majority’s evident desire to perpetuate the racial-preference regime long used by almost all major establishment institutions while using obfuscation to insulate it from the overwhelming popular disapproval that candor would have provoked.i
I. Grutter’s impact: a racial spoils system forever?
In Grutter, Justice O’Connor, who had never before voted to uphold a system of racial preferences, quoted a 1977 article asserting that "[i]t would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life." But now she has done more than anyone alive to entrench just such a pervasive racial spoils system. In doing so, she and her four more liberal colleagues have cast aside, perhaps forever, the Rev. Martin Luther King’s dream of an America in which people are judged "not by the color of their skin but by the content of their character."