Justice Lewis Powell in a painting by George Augusta, photographed by Vic Boswell. Courtesy of the Supreme Court of the United States.

Bakke Revisited

• Dean John C. Jeffries, Jr. ’73

Editor’s Note—the following is from a retrospective on Bakke prompted by Gratz and Grutter, the Michigan affirmative action decisions of 2003. It was first published in The Supreme Court Review (2004).

In 1978, Lewis Powell saved affirmative action. By one vote—or perhaps only half a vote—he allowed the continued integration of elite institutions of higher education, despite persistent deficits in the academic qualifications of many minority applicants. It is hard to imagine that integration could have had a more unlikely champion. A child of the Old South, Powell had lived most of his life, uncomplainingly, in racial segregation and educational apartheid. Like many southerners of his generation, Powell later found it incomprehensible that he had ever accepted the systematic subjugation of blacks, but accept it he had. Only after Brown, and the massive challenge to legality that Brown provoked, did the beliefs of his upbringing give way to the mandate of color-blindness before the law.Within a few years, he was asked to move beyond color-blindness, to which he had but newly been won, and embrace racial preference. This personal journey, which in some sense he never completed, led to Powell’s opinion, for himself alone, in Regents of the University of California v. Allan Bakke.

That opinion was as conflicted as its author. On the one hand, Powell said that racial preferences in favor of minorities were constitutionally equivalent to discrimination against them and required the same judicial scrutiny. On the other hand, he denied the conclusion to which that doctrine led. He rejected the reasons for thinking “reverse” discrimination different from the traditional variety, yet he embraced that result. He dismissed the distinction between goals and quotas as “beside the point,” but came to rest on precisely that ground. And throughout, his argument seemed devoid of any broad consistency that might be called principle. Indeed, the difference between the affirmative action plans that Powell found unconstitutional and those that he was prepared to uphold was not substantive, or even formalistic, but essentially aesthetic. Considered purely as a matter of craft—of consistency with precedent, coherency as doctrine, and clarity of result—Powell’s Bakke opinion must be judged a failure.

Yet twenty-five years later, it carried the day. In Grutter v. Bollinger, the Supreme Court embraced not only Powell’s result, but also his reasoning.… Despite years of strife and litigation, the constitutionality of affirmative action in higher education has now been determined, probably for a generation, along precisely the lines that Powell laid out in 1978.

The evolution of Powell’s position from idiosyncratic outlier to received wisdom is one of the most interesting and unlikely stories in American constitutionalism. It tells us something about the risk of a priori reasoning in an imperfect world and about the Supreme Court’s power to influence the course of public opinion to which, in the long run, the Court itself must respond. Ultimately, the history of Powell’s opinion in Bakke also challenges the way many of us think about constitutional law.…

[The Michigan decisions prompt] three comments. All are personal, in the sense that they are matters of opinion, but the first is especially so.

I have come—slowly—to the view that Powell in Bakke was exactly right. He was right to allow racial preferences and also right to deploy the Constitution against their formalization and entrenchment.… If all consideration of race were squeezed out of admissions decisions, the prospects of white and Asian applicants would be marginally improved (owing to the impact of a few additional places on their greater numbers), but the prospects of African-American applicants (and certain other minorities) would be drastically reduced. A sharp cutback in African-American enrollment would hurt the law schools and hurt the nation. It would exacerbate a sense of grievance that already has more-than-adequate foundation. It would deprive the African-American community of a cadre of potential leaders. And it would make it that much harder for minorities to maintain a full commitment to our common future as Americans.

Additionally, rigorous color-blindness would deprive non-minority students of the personal, professional, and educational advantages of living and learning with minorities. This last point is sometimes dismissed by those who are far away from educational institutions, but I believe it is keenly felt by those who work and study in them. There are undoubtedly non-minority students eager for the “last” place in Michigan or Virginia and willing to accept that benefit under almost any circumstances, but there are many more students enrolled in those institutions who recognize that their experience would be impoverished by the absence of minorities. Under current conditions, strict colorblindness … would impair the quality of the education of all law students.

Perhaps less obviously, I think we would also have come to rue the more generous approach advocated [in Bakke] by Brennan,White, Marshall, and Blackmun. Racial set-asides in higher education, which they were prepared to tolerate, would have been the most efficient way to achieve diversity in the classroom, but they would have proved corrosive. Any allocation of spaces on the basis of race or ethnicity would have been challenged as conditions changed, and those challenges would have been anything but edifying.…

[Debates over changes in racial set-asides] could scarcely fail to divide and wound. Plausible arguments could and would be found to support different positions, which would then become the focus of coalitions organized around ethnic identity.Whatever allocations were made on day one would quickly come to feel like permanent entitlements to those who benefitted from them, and whatever adjustments were not made on day two would as quickly become sources of grievance to those who did not prosper. The prospect of perpetual competition over racial and ethnic allocations is one that none should welcome, yet it is hard to see how approval of [explicit quotas] could have led anywhere else.…

A second observation prompted by the revivification of Powell’s position in Bakke concerns the relationship between Court and country. History-minded scholars (and others) have challenged the notion that it is the business of the Supreme Court to lead the nation out of darkness. I think particularly of my colleague,Michael Klarman, who has argued that even Brown v. Board of Education, the most mythogenic and justifying of all modern decisions, was in fact more nearly a reflection of an emerging national consensus than an heroic attempt to uproot one. The broad tides of social change sweep the Court along with the country, and rarely do the Justices stand long in the way. There is much to be said for this perspective, not least as a corrective to the extravagant judiciocentrism that pervades constitutional law classrooms, but there are also small acts of individual judgment or personality that profoundly affect the course of events…. Bakke’s failure to achieve intellectual clarity—or, as I would prefer, its sacrifice of cogency for wisdom—resulted chiefly from the participation of one intransigent moderate who occupied ground he could not adequately defend, save by insisting that it lay between two alternatives he would not accept. Powell’s compromise was uniquely his own.With due allowance for the ultimate unknowability of historical “what-ifs,” it is hard to believe that Grutter would have come to rest on the same ground absent Powell in Bakke.…

Finally, it is startling to note how little either the insight or the impact of Powell’s opinion in Bakke depended on his abilities as a lawyer. That is not to say that he lacked those abilities. Powell was a good lawyer and an uncommonly successful one. But his achievement in Bakke came despite, not because of, the constraints of legal reasoning. To the extent that the law as an intellectual craft influenced Powell in Bakke, it would have pushed him toward one of the “clear answers” provided by his colleagues. Either the Constitution required colorblindness, now and forever, as the Court itself had so often insisted, or racial preferences in favor of minorities were qualitatively different from discrimination against them and should be judged by a more tolerant constitutional standard. Neither argument is hard to write.What Powell did was to reject both arguments and to consign himself and his clerks to the frustrating and perhaps impossible task of finding an analytically presentable way of splitting the difference. The resulting opinion is well written, admirably clear, anything but slapdash. But beneath the skillful prose and careful exposition lie difficulties that no artful phrasing can resolve.… Powell himself knew the weakness of his position, yet persisted in it. Yet if there was any special foresight in Powell’s view, any gift of wisdom that justifies our later celebration of his position, it lies precisely in the analytic incongruity of “genuine” diversity. Without his willingness to embrace that contradiction—and to live with the criticism it provoked—Powell’s compromise would have failed.…

The choice Powell faced [in Bakke] was not merely between two analytically coherent positions, but between analytical coherence on the one side and his hopes for the nation on the other. As a judge, his reputation will stand or fall on the choice he made. So far, the returns look good.

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