It's worth comparing O'Connor's concurring opinion in Smith with the opinion in Grutter. The former sends me up the wall, because she wants to distance herself from what she clearly views as the insensitive Scalia opinion that scraps strict scrutiny, but she also wants to remain enlisted in the war on drugs. So what she does is assert, without the slightest trace of an argument, that Oregon meets the compelling interest test because it says that criminalizing peyote is necessary to winning that war. (Of course, Oregon changed its mind within a year or so, when it modified its criminal law to make an exception for the religious use of peyote by Native Americans.) Grutter isn't quite so crass; there's much more of an argument. Still, people who take doctrine more seriously than I do are indeed entitled to wonder whether she is applying full-throttle strict scrutiny (whatever that might mean) or instead is applying a de facto balancing test a la Marshall's opinion in Rodriguez v. San Antonio.
One other point, re the invocations of Korematsu: The "compelling interest" there, of course, was national security. I find it interesting that O'Connor (properly) cited the "military brief," which I think can make a claim to be the most important single amicus brief in history. Although it has references to ROTC and the like, the real thrust of the brief is that it would be disastrous to maintaining an effective fighting force if the officer corps did not in some significant respect reflect the demographics of the men and women they were commanding. This has precious little to do with quality of education, of course, and everything to do with institutional dynamics. We will, presumably, find out later (as with Brown) whether Grutter is an "education case" or a case about deference to any respected institution that can make a plausible claim for a demographically mixed work force.
sandy
