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Jewish World Review June 27, 2003 / 27 Sivan, 5763

Joel Mowbray

Joel Mobray
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O'Connor flips — again


http://www.NewsAndOpinion.com | A Supreme Court justice some years ago wrote this stirring rebuke of racial preferences: "The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs." That was Sandra Day O'Connor, but in 1989. What a difference 14 years can make.

In a spate of news stories, O'Connor's opinion in the Michigan racial preferences case was pegged as reflecting the views of Americans, most notably in the Washington Post. The paper claimed that "the court came down roughly in line with public opinion," by rejecting outright preferences and quotas, but supporting the nebulous goal of "diversity."

Americans do, in fact, support "affirmative action," but they support the bumper sticker catchphrase so long as no one gets preferential treatment based on race or ethnicity. But that's not the principle the court upheld in its decision Monday.

O'Connor, after having found racial preferences and quotas to be unconstitutional in four previous cases, suddenly decided with the Michigan case that now the 14th Amendment doesn't mean what she used to believe that it meant. Though she helped strike down the undergraduate admissions program - which used a crude 150-point scale, where 20 points were given for being the "right" race - she was the swing vote in upholding the law school's program.

Although reporters praised O'Connor for her keen "nuance," the notorious centrist drew a distinction where there was no real difference. The law school's admissions program was almost identical to the undergraduate one, except it was smart enough not to attach "points" to each minority applicant. O'Connor called it "not mechanical," but all it really amounts to is a more subtle way to implement racial preferences.

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According to several people familiar with both systems, there was little substantive differences in the results each produced. The law school admissions officers still considered race; they just devised a plan more likely to snooker a court.

Court watchers should not have been shocked that O'Connor would preserve racial preferences after repeatedly deeming them unconstitutional in the past. (Granted, this was the first such case involving college admissions, but the principles are the same as before.) But while O'Connor may be inconsistent in her approach to racial preferences, she is remarkably consistent with her inconsistency on hot-button issues.

In voting rights cases, O'Connor had sided with a 5-4 majority on a number of cases, striking down racially gerrymandered districts in Texas, Georgia, and North Carolina. O'Connor even wrote one of the opinions finding that drawing Congressional district lines for racial reasons was a violation of the Fourteenth Amendment. But a funny thing happened when the North Carolina case came back to the court a third time: O'Connor flipped. The female justice from Arizona signed onto the Steven Breyer-penned 5-4 decision endorsing the still-racially gerrymandered districts.

Nowhere has O'Connor done a greater turnaround than on abortion. In three separate, high-profile cases in the 1980s - the first in 1983 and the last in 1989 - O'Connor essentially upheld the pro-life position. In the first of those cases, abortion supporters were furious at the line in her written opinion that the framework of Roe v. Wade is on a "collision course with itself." But those same activists were downright tickled three years later, when O'Connor did what is by now her trademark: she flipped.

In Planned Parenthood v. Casey, O'Connor ditched her previous pro-life opinions because, in so many words, she felt the public wasn't ready for Roe to be overturned. But, much like the phony distinction she made between Michigan's undergraduate and law school admissions programs, her argument was hollow - at best. Overturning Roe would not have made abortion illegal; it simply would have allowed states to decide the question as they had the power to do before 1973. Thus, if the public wasn't ready for abortion to be tightly regulated or prohibited, state legislatures wouldn't do so. That's democracy.

It's anybody's guess why O'Connor, a former legislator herself, has decided to play politics with the Constitution. Perhaps the best theory comes from the Center for Equal Opportunity's Edward Blum: "She's Goldilocks. One principle is too hot, the other is too cold. Now she's found one that's `just right.'"

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JWR contributor Joel Mowbray is the author of the forthcoming book "Dangerous Diplomacy: How the State Department Endangers America's Security". Comment by clicking here.

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© 2003, Joel Mowbray.