This was too overt for the court. The two swings here are O'Connor and Breyer. So 6-3 (Breyer concurring in the result). Pretty hard to distinguish between this and Bakke, which is frustrating.
Grutter certainly had a difficult background-- her father was an itinerant preacher-- and her academics were solid, but not perfect like Bakke. She might well have gotten in had she been a minority applicant, but we don't know for sure.
The law school's program doesn't assign numbers. It's lawyerly, subtle, and crafty. It says it'll do basically what Harvard said it would do in the Bakke case: look at the whole person. They are striving for a "critical mass" in certain groups.
The justices disagree on whether this should stand or fall, but the point of contention is basically the critical mass point. It turns out that "critical mass" is almost like a mathematical function of the number of applicants in that group. Dissent (see p. 327): how come the critical mass of one group is different from another's?
And note that this is O'Conner writing the opinion: she dissented in Gratz, and Rhenquist (who wrote Gratz) dissents here.
Clever argument: does diversity add much to classroom debate? Nobody wants to be called on. Also the Joe Sixpack article: to middle-class (and lower) white Americans, affirmative action looks like the white elite taking care of themselves and then helping other groups at the expense of them.
And also, Harvard could (if it wanted) take ALL the top African American applicants. There's a conflict between wanting integration and wanting the same standards for all groups. But we don't want segregation, that's for sure, and that means we don't want to perpetuate the utter dominance of one group. Think of Swann and Jenkins: we're willing to go to some pretty great lengths to get integration.
And remember that perfection is the enemy of the good: even if affirmative action isn't perfect, it's a better thing than the alternative.
Elite law schools are a gateway to high-level politics; if they exclude minorities, then minorities may never have access to the corridors of power. We're trying to break a cycle here. Does this actually break any cycle, though, after all this time with affirmative action?
The court pretty much promises not to address this issue for another 25 years (suggesting that affirmative action won't be needed after that). But what about this: so we take steps to even things out now, but then what happens 25 years from now when the kids of the professionals who benefited from affirmative action can't get into the schools their parents attended?
If we wanted to give racial reparations, what would be the best way to do that? Think back to Korematsu. What would be wrong with just simply paying money to every member of some kind of minority group? If we gave out the $20K that the Japanese Americans got to each African American, that would be $800B. And African Americans' history is a lot harsher than 3 years of incarceration. Same with Native Americans. So actually affirmative action is a really cheap way of going about making things right-- reparations are just not financially feasible (and maybe that's a crass idea anyhow).
As a side-effect, reparations might actually assuage racial guilt somewhat. The Germans are still doing this for WWII. And racial guilt is embarassing-- this is a fair portion of what Thomas complains about (leave us alone). Of course, there's the problem that the people deciding to pay reparations may not be the ones bearing the burden.
But remember that merit selection (i.e., based on standardized tests) was itself a measure to correct discrimination: if we don't have an open transparent standard for admission, we risk undermining the whole goal of merit admissions. So if we're going to do affirmative action, let's not make it covert.
And note that the US won't be majority-white for too much longer, so it behooves the present majority to work on solving this problem before it loses the ability to do so.
We want a meritocracy because we want the best people to be in charge-- so we don't want things to be hereditary or racially based, because those factors usurp the place of merit.
Fordice: Thomas and Scalia basically say that if we're serious about affirmative action, we've got to be condemning historically black colleges (and womens' colleges) to oblivion. This is basically a battle of the studies.
When the amici briefed in DeFunis, all but two of the briefs were in favor of affirmative action-- the two opposing it were from Jewish groups, who had been disadvantaged by non-merit admissions in the past. And note that part of the point of an elite school is to be elite in composition-- if we force dilution of that, are we devaluing what made it elite?
And after all, quotas are race discrimination, and if we authorize it officially, aren't we losing the moral high ground? And if we start having quotas, who gets a quota? Will we not exacerbate racial tension by our efforts to relieve it? And look at both Thurgood Marshall and Clarence Thomas: no matter how well they do, people will always wonder if they've succeeded on their merits or on the basis of race. On the other hand, say some minorities, we've got plenty of stigma already-- we'll take the status and the power, if the cost is just people wondering how we got it.
And note that we get all excited about diversity, but don't do much to produce intellectual diversity (see political leanings of faculty hiring, e.g.).
We want people to work hard to get into the middle class, but we disincent this if we disadvantage their children.
Also, are we setting up minorities to fail (i.e., if the bottom of the class is disproportionately minority) by admitting them to schools where it's going to be a real struggle to be even average? And does this sap motivation: why study hard if you're going to be admitted anyway? And we're diluting attention from the real problem, which is the family problem.
Back with reparation. The idea of reparation assumes racial guilt, which is itself a kind of racism: the assumption that a whole race is tainted. Why should a recent immigrant from Ireland pay for what Southern Americans did 150 years ago. And anyway, it's too late: slavery ended a long time ago, and formal segregation ended with Brown.
And once we start affirmative action, it's never going to go away. We want to preserve minority cultures, but those differences translate into differences in academic behavior. And if you start a bureaucracy, it's pretty darn hard to change it, just on a practical level.
And maybe we don't need affirmative action any more: if Obama can be president, maybe there's not really a ceiling any more. Plus, defining everyone who is 3/16ths Native American as being Native American for the purposes of admissions is just bizarre and intolerable.
So anyway, we have overt racial discrimination here (this is like Gratz and Jenkins). And the majority doesn't like that kind of thing-- they're willing to tolerate some moves toward integration, but they don't like it to be so overt.
Dissent: segregation is a big problem, even if it's not intentional. We want it to go away. The court should give leeway to school districts that are promoting integration.
If you want to have tracking for superior (and inferior) students, to promote efficient instruction, you get with disproportionate racial representation, but if you don't do this, then students at both the top and bottom of the academic spectrum are disadvantaged (i.e., the influence of merit is diminished).
As it stands, the system stays pretty white. This makes non-white representatives more polarized, and while representatives more callous about racial issues. But even so, it's not clear whether racial gerrymandering would increase or decrease minority influences in legislatures: they make white districts unanswerable to minority opinions, and the majority of districts will be white.
Note the alien and sedition act of 1798: criminalizing sedition (in 25 cases, this meant vigorous disagreement with Federalist party doctrine). All 25 people charged (9 jailed) were Jeffersonian Republicans, including one sitting member of congress.
When Jefferson became president, the act lapsed, and he made sure it didn't get re-enacted. So speech restrictions went away until WWI, and most of the fundamental cases on free speech date to that time.
Generally Holmes was a major champion of free speech, but not so much here. Powerful quote on p. 359: the character of an act depends on the circumstance in which it is done (context is important, for example). Also, note that the theatre with the shouting of fire is not "crowded" in its original formulation. And the "clear and present danger" test is articulated here.
Black (carried constitution in his pocket) was a big free speech advocate, as Douglas was (and Brandeis for that matter). He dissents, and is extreme about it. Douglas did too.
Note also (p. 362) Learned Hand's formulation of how to decide whether an invasion of free speech is justified.
Skokie tries to challenge the lower court's opinion that its law is unconstitutional. It's extraordinary for there to be a dissent from a denial of cert (there was one the first time Boumediene came around).
The "heckler's veto:" the fact that there will be opposition doesn't justify infringing on speech. The text is on the side of the lower court, and so is Brandenburg. And political speech is the core of 1A. Because the ultimate protection against tyranny in the US experiment with limited government is the vote, and we want voters to be well-informed, and able to exchange ideas.
Policies: freedom of thought, of conscience, the freedom to have your own opinions, allowing dissenters to contribute their thoughts to the marketplace of ideas. We want dissent to be peaceful-- if we stifle it, we'll get terrorism.
On the other hand, Collin can write all the pamphlets he wants, and can hold meetings, etc. Why should he be allowed to go to Skokie and inflict this outrage on Holocaust survivors? Can't we give refuge to those poor people-- that's what they came here for? Of course, this is Collin's chance to vault into a public forum, and bring national attention to his cause. And of course there's a slippery slope here: who gets protection from offensive speech?
Again, though, it's like the Nazis were big on free speech, so it's kind of ironic that we're giving them 1A protection, because if they succeed, that's the first change they'll make.