Since Justice Powell spoke only for himself in his Bakke opinion, the legal authority of his views on diversity remained in doubt for the next 25 years, while various lower federal courts struggled to determine the legality of race-conscious admissions practices. Meanwhile, in other contexts, such as employment and government contracting, the Supreme Court was taking a harder and harder line on the question of when government may use race as a factor in allocating benefits or burdens. Given the court’s shift toward a more strictly “colorblind” position, many observers in the educational community feared that the court would strike down the admissions practices at issue in the Michigan cases. Because most selective colleges and universities practice race-conscious admission, the fallout from such a ruling would have been momentous. Anticipating this, the University of Michigan marshaled extensive social science evidence to support the proposition that a diverse student body produces better educational experiences. The university also enlisted a wide variety of allies to write friend-of-the-court briefs, including military commanders and corporate executives who argued that the success of their enterprises required a racially diverse class of leaders.

The Michigan cases showed, if nothing else, that the Supreme Court is still deeply divided on the issue of affirmative action. Grutter was decided by a 5-4 vote; Gratz by a 6-3 vote. Altogether, the two cases produced 13 separate opinions. The “societal remediation” view still seems to command the support of three or four justices, most notably Ruth Bader Ginsburg, who argued forcefully for the view that policies such as Michigan’s should be upheld so long as race is used for “inclusive,” rather than “exclusive,” purposes. The “colorblind” view now seems to command three votes, most notably Clarence Thomas, who argued passionately that all racial classifications are stigmatizing, even when supposedly “benign.” The remaining two or three justices are pragmatists, generally unsympathetic with the use of race, but willing to grant at least some deference to the educational establishment and its allies.

Foremost among the pragmatists is Sandra Day O’Connor, who authored the opinion for the court upholding the law school system in Grutter, but then cast a vote against the undergraduate system in Gratz. True to form, O’Connor eschewed absolutist or ideological reasoning, focusing instead on the practical importance of promoting diversity in and through higher education, while guarding against the dangers of excessive reliance on race. Perhaps the most revealing indication of her ambivalence is the final passage of her opinion, in which she declares—somewhat wishfully—that race should no longer be a permissible admissions factor 25 years from now. The “legislative” nature of that pronouncement signals, as clearly as anything in O’Connor’s opinion, the compromise nature of the court’s ruling.

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