The Constrained Court: Law, Politics, and the Decisions Justices Make

TWO OF THE MOST IMPORTANT Supreme Court cases in recent years stem from the University of Michigan’s decision to deny admission to two white applicants, Jennifer Gratz and Barbara Grutter. After their rejection, both women sued the university, claiming that the university’s affirmative action policies unconstitutionally denied them admission. Ms. Gratz objected to a point system that automatically gave applicants to the undergraduate program from under-represented groups 20 extra points (out of 100 needed to be admitted). Ms. Grutter objected to the law school’s policy of taking race into account, although less formally.

The cases put the Bush administration in a difficult position. While President Bush tended to support conservative policies, he had made numerous efforts to reach out to minorities. His main political advisor, Karl Rove, often spoke of building a long-lasting conservative majority by reaching out to African Americans and Hispanics. Opposing affirmative action could endanger such efforts.

The first question for Bush was whether his administration should even take a position on the cases. They did not need to, as the cases were between private citizens and a state university. However, many saw this as a chance for President Bush to take a stand on affirmative action. Conservative columnist Diana West (2003) wrote, “What the administration chooses to do—the likely choice being either taking a stand opposing racebased admissions, or taking no stand—will reveal more than just the outcome of a power struggle within White House circles… George W. Bush must decide between setting off an electrifying jolt of principle by opposing affirmative action, or yielding to heavy political pressure.” Other newspapers including the Washington Times, the Wall Street Journal, the New York Times, the Seattle Post-Intelligencer, and even the British Manchester Guardian published editorials encouraging the administration to, in the words of the Michigan Daily (2003), “Get off the Fence.”

If the Bush administration were to weigh in on the cases, it would need to decide what its position should be. Conservatives wanted a brief that opposed all affirmative action policies (Biskupic 2003; J. Lewis 2003; Murray 2003; Sammon 2003). Roger Clegg, general counsel for the conservative group Center for Equal Opportunity, argued that “a brief that said Michigan should lose but that in principle, diversity justifies the

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