In a dramatic morning of retrospection, the Supreme Court decided Monday to take a second look at two of the most controversial decisions the Justices have handed down in the last quarter of a century. If there were any doubts before that the current Court term has the chance to be an historic one, those doubts now probably ought to be buried along with the notion of judicial restraint among this current crop of jurists.
The Court announced that it will revisit the issue of affirmative action in higher education, last evaluated in its cryptic Bakke decision in 1978, and the issue of private homosexual conduct, last resolved in an emotional 5-4 ruling in a 1986 case interpreting Georgia law.
On affirmative action, the Court clearly wants to clarify one way or the other what has become a laughingly muddied picture at the lower court level. On homosexual privacy rights, meanwhile, the Court may be signalling a reluctant but growing willingness to accede to changing social mores about gays in America.
The Justices will use the University of Michigan's law school and undergraduate admissions policies as their foil for evaluating the constitutionality of affirmative action programs at public universities across the country.
The question is one of equal protection: do affirmative action programs violate the rights of white applicants by favoring minority applicants? If not, to what extent can school officials use race as a factor in establishing a diverse student body? If so, is there any middle-ground that can avoid the lily-white result that affirmative action programs were designed to thwart in the first place?
It's easy to see that it's a complex issue for the Justices to chew on. But it's a dilemma of their own making, or at least it's a dilemma made in part by now-Chief Justice William Renquist and Justice John Paul Stevens. Rehnquist and Stevens are the only two members of the current Court who also presided over the Court's 1978 decision involving a medical school student in California named Allan Bakke.
Bakke, a white man, had sued for admission after he was rejected in favor of minority candidates with lower test scores. His case generated the legal principle that racial quotas are unacceptable parts of the admissions process. But the case also generated the legal principle -- seemingly at odds with the first -- that race can be considered a factor among others when considering a candidate.
Not surprisingly, after the Court a generation ago said "no" to quotas and "yes" to race as an admission factor, school officials and lower federal courts alike have been all over the map trying to create and enforce policies that can consider race as a factor but not constitute a quota. The result is mass confusion and endless litigation and it's probably for that reason, as much as any ideological one, that the Justices decided to go ahead now and snatch the Michigan cases away from the 6th U.S. Circuit Court of Appeals.
Whatever their reasons for taking the case, the betting now among the legal cognescenti seems to be that the Court's conservative majority will find a way either to gut affirmative action admissions' programs altogether or severely restrict how far school officials can go in making race a factor between candidates.
The next likeliest scenario is a much more limited ruling that cuts away some of the prevailing confusion but continues to allow public universities to consider race. Proponents of affirmative action would take that result in a heartbeat. The third most likely scenario would see the Court using these cases to gut affirmative action, period -- a result the right would crave. We'll see. Either way, though, the law in this area will be very different on the day the Court's decision comes down.
Meanwhile, the Justices will use a Texas anti-sodomy statute to evaluate again whether there is a constitutional privacy right to homosexual conduct between consenting adults in the privacy of their bedrooms. Thirteen states, including Texas and Georgia, current have such statutes on the books and the fate of those statutes depends almost entirely upon whether the Justices are willing to look to 21st Century life in America as opposed to history and tradition when evaluating the case.
In 1986, when the Court in Bowers v. Hardwick famously upheld's Georgia's anti-sodomy law, the late Justice Byron White focused for the slim majority on history and tradition. But the Court has reversed course before and could do so again.
In its recent death penalty jurisprudence, for example, the Justices have looked to changing societal conditions and priorities as reflected by state legislatures. If the Justices do that in the Texas case -- think of all the hate-crime laws that have been passed since 1986 -- they just might find an equal protection or due process problem with making criminal for homosexuals conduct that is not criminal for heterosexuals.
In any event, opponents of these types of laws probably are delighted that the Court has agreed to take the Texas case. They'll believe, up until the moment the Court renders it decision sometime next year, that the Justices would not have voluntarily put themselves back into this legal and political and cultural thicket if they were not going to reverse Bowers and affirm a new constitutional right.
Could the Court tack right on affirmative action and at the same time in the same term tack left on gay rights? If the Justices want to fix two old problems they could. We'll see if they do.
By Andrew Cohen