Sunday, December 16, 2007

O'Neill reviews Perry, The Michigan Affirmative Action Cases

The Michigan Affirmative Action Cases by Barbara A. Perry (University Press of Kansas, 2007) is reviewed by Timothy J. O’Neill, Department of Political Science, Southwestern University for the Law and Politics Book Review. O'Neill writes:

Some things do not seem to change or, in Barbara Perry’s felicitous phrase, we may be “Bakke to the Future.” Her account of GRATZ v. BOLLINGER (the University of Michigan undergraduate admissions case) and GRUTTER v. BOLLINGER (the Michigan law school admissions case) is more than the tale of the journey of two Supreme Court cases and their aftermath. It is also the story of the profound shift in the justifications for affirmative action in college and university admissions.
Perry, the Carter Glass Professor of Government at Sweet Briar College and Senior Fellow at Louisville’s McConnell Center, has written a superb addition to the University of Kansas Press’s Landmark Law Cases and American Society series. Few books so successfully limn the background, cast and characters, issues, decisions and significance of a leading Supreme Court case as does THE MICHIGAN AFFIRMATIVE ACTION CASES....

Two important lessons about judicial politics are affirmed in these pages. The first is that individuals do matter. Powell and O’Connor demonstrate the power of the centrist justice in a deeply divided court. In many ways O’Connor was Powell’s doppelganger. Their shared temperament and professional values blossomed into a close and warm friendship. Both justices were the only ones on their respective courts to have held a legislative office. Both were “judicial diplomats” (p.96), displaying an uncanny ability to detect the sweet middle of a divided court and to build and hold a cohesive majority among a set of high-strung individualists. Both embraced a new understanding of diversity as the principal justification for racial preferences when societal rather than individual discrimination was at fault.
The second lesson is that the legal process may have more in common with legislative politics than popular or elite opinion will admit. Perry lays out a fascinating sidebar discussion about the alleged manipulation of the court docket by the chief judge of the 6th Circuit (pp.77-84, 138-140, 170-171). Dissenting judges charged him with intentional manipulation so as to exclude retiring Republican judges from participating in the case. Apparently, the 6th Circuit is as polarized and as susceptible to procedural and docket timing tricks as is the US House of Representatives. No one will walk away from this discussion still entertaining the idea that federal court judges are Platonic guardians, dispassionately deducing principles of constitutional doctrine from perfect ideals embodied in the constitutional firmament.
Perry’s story also demonstrates the profound shift in the rhetoric justifying affirmative action in the near thirty years since BAKKE. Over the years, justifications for racial and ethnic preferences in higher education have narrowed from broad claims, such as group compensation for societal discrimination and the need for role models, to the simpler one stated explicitly by Justice Powell in BAKKE: diversity. O’Connor confirmed this shift by relying on Powell’s curious, perhaps contradictory, assertion of academic freedom as a basis for protecting diversity in academia, a negative liberty claim deployed in defense of an egalitarian outcome. Whether the diversity value can carry this weight is open to debate, especially given recent Supreme Court decisions....
The full review is here.

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