Justice Sandra Day O'Connor got her job through affirmative action. It was obvious to officials in the Reagan Justice Department, as they searched for a Supreme Court justice in the summer of 1981, that she lacked the usual qualifications for the high court. "No way," Emma Jordan, an assistant to the then Attorney General William French Smith, recalls thinking. "There were gaps in her background where she had clearly been at home having babies. She had never had a national position. Under awards, she had something like Phoenix Ad Woman of the Year." No matter. President Reagan wanted to appoint the first woman justice, so he named O'Connor.
Last week O'Connor in a sense returned the favor by playing the critical role in the most important affirmative-action case in decades. She cast the fifth and deciding vote and wrote the court's opinion in upholding the right of the University of Michigan Law School to use race as a factor in admissions. As a practical matter, her ruling in Grutter v. Bollinger gives a powerful judicial boost to affirmative action in education, a source of legal confusion and bitter debate in recent years. O'Connor, a moderate Republican, was hailed as a somewhat unlikely hero by liberal groups. She is seen as living proof that affirmative action works. There are now two female Supreme Court justices (the other is Ruth Bader Ginsburg, who did have the usual qualifications), and half the seats in America's law schools are filled by women. And one of the Bush administration's lead candidates to fill the next vacancy on the Supreme Court is a black jurist in California, Janice Rogers Brown.
O'Connor, however, is perhaps better understood when viewed through a different prism. She is not so much an avatar of the future, when divisive racial and gender distinctions may be history, but a creature of the past. Queenly but down to earth, a pragmatist, not an ideologue, she is the embodiment of the old progressive establishment in America. Like an earlier generation of nonpartisan statesmen (or, to their critics, elitists), she wishes to accommodate wrenching social change by quiet compromise and by avoiding the sort of hot-button rhetoric that is now a staple of TV and radio talk shows, not to mention some of her colleagues' opinions.
Moderate centrists are a dying breed in Washington; O'Connor's genteel approach is almost quaint in the current political climate. Indeed, were O'Connor or some other justice (four are older than 70) to step down, the political experts all predict a brutal confirmation battle between zealots on the left and right. O'Connor, by contrast, seeks consensus. She doesn't like to be part of polarizing decisions, says her brother, Alan Day. "She takes it hard and feels it hard," he told NEWSWEEK. On affirmative action, O'Connor searched for a middle way. The question is whether she resolved the issue--or fudged it, the way most Americans do.
O'Connor's model on the court has been the late Justice Lewis Powell. A courtly, gentle Virginian, Powell was a paternalist (he liked to quote Robert E. Lee on the virtue of duty) who was leery of bright lines and bold doctrines. It was Powell who first upheld affirmative action in higher education in the 1978 Bakke case. O'Connor instantly became Powell's protegee. Both Powell and O'Connor were good dancers and joked about being the first Supreme Court justices ever to dance together.
She suffered from discrimination as a young woman. Though O'Connor graduated near the top of her class at Stanford Law School in 1952, West Coast law firms tried to shuffle her off to the secretarial pool. But she does not appear --to have suffered much. Raised on a ranch to be self-reliant, she has always exuded confidence. Moving to Phoenix with her husband, John, a prosperous, well-connected lawyer, she became a fixture in the Arizona political establishment in the '60s and '70s, serving in the state Senate as majority leader and as a judge on the Arizona court of appeals. In Washington she is something of a social matron, playing paddle tennis at the club and going to charity balls.
O'Connor's decision in the Michigan affirmative-action case was squarely in line with the opinions of most editorial writers and business and academic leaders. Corporations and universities flooded the court with briefs arguing that affirmative action has been a success at providing diversity on campus and in the workplace. Nonetheless, O'Connor's reasoning was a little slippery or muddy, as several columnists, like Slate's Michael Kinsley, pointed out. (An angry Clarence Thomas, the court's black conservative, castigated O'Connor for following the "faddish slogans" of the "cognoscenti.")
Her ruling has little impact on average African-Americans, relatively few of whom apply to the 100 or so selective colleges in the United States. Rather, she is concerned with creating more black leaders by opening places for them in elite schools. The ruling does not really represent a consensus of popular opinion. Most Americans say they favor "affirmative action" and oppose "quotas"--both loaded terms. But asked more neutrally whether they approve "racial preferences," the answer from both blacks and whites is overwhelmingly no.
O'Connor voted with five other justices to strike down the numerical system used to admit Michigan undergraduates. Assigning a 20-point bonus for skin color seemed to smack of quotas. But O'Connor and four others voted to uphold the law school's admission system, which is less blatant but nonetheless affords a clear racial preference. An African-American with a B-minus average in college has about the same chance of admission to Michigan Law as a white or an Asian with an A average.
O'Connor concluded by expressing the expectation that in 25 years the need for racial preferences will be gone. Again, she is more closely reflecting the experience of the elites than the population as a whole. While many black leaders have emerged in recent years, the gap between overall black and white performance on standardized tests has actually widened. By her seemingly moderate, balanced approach to the Michigan case, O'Connor won plaudits for treating a raw wound. And many Americans hope her fix will be much more than a Band-Aid.