Transparency

I've been mulling it over, and discussing it with my ConLaw professor, and I've decided the thing that most bothers me most about the Grutter decision was the lack of transparency in the majority opinion. The dissenters said what they really believed, and I think made a good legal argument against AA.

But the dissenters appeared persuasive not simply because of the strength of their underlying position. Instead, it was because the majority, and in a sense really just O'Connor, refused to admit that they were not going along with the trend set by Adarand, Croson and the other strict scrutiny restrictions on AA. By trying to make it appear that this decision fit perfectly well with the rest of the AA jurisprudence, O'Connor had to defend the position on the thinnest and weakest grounds. This left the dissenters to feed on her weak logic and poor application of precedent.

There's a reason that Powell was the lone author of the 'compromise' position in Bakke. It's bullshit. If you believe in affirmative action, you believe that the 14th Amendment allows it, and you ought not think it only constitutional if applied in a particular way, in a particular field, for a particular time. That's just not how the Constitution works.

Yet that's how O'Connor has defended the program. There are good arguments for the constitutionality of AA, and O'Connor raised none of them. Perhaps she wanted to continue her horrible trend of splitting-the-difference, or perhaps sought to avoid the appearance that she's just changed her mind. Either way, I think it's a wretched opinion that ends up supporting a policy without citing any of the actually persuasive arguments in its favor.