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Sunday, January 24, 2010
In a new essay discussed here in The Chronicle of Higher Education, retired Justice Sandra Day O'Connor revisits the majority opinion she wrote in that case, Grutter v. Bollinger, involving the University of Michigan's Law School. What she has to say in her new essay has stirred anger in many of the critics of affirmative action who lamented the Grutter decision. She seems both to characterize the research underlying the majority opinion as "speculative" and to say that the court really did not mean anything with its talk of racial preferences ending a quarter century down the road.
Lawyers on all side of the affirmative action debate stress that it is the court's opinion itself, and not the subsequent musings of a retired justice, that will serve as precedent for the lower courts and likely help shape any later Supreme Court discussions of the issue. Still, the exact meaning of Supreme Court rulings often is hotly debated in subsequent legal battles, as evident when the justices hearing the Grutter case sparred over the exact meaning of the majority opinion that Justice Lewis Powell wrote the last time the high court considered such admissions preferences, in the Bakke decision of 1978. Justice O'Connor's new essay makes the meaning of two elements of her 2003 opinion seem a lot more ambiguous than had widely been assumed.
The Chronicle article, available to nonsubscribers, offers more on her essay and the reactions it has stirred.