The paragraph concerning the military amicus brief begins with quotes from
big business' brief -- GM as I recall. I take this to mean that the
affirmative action issue is virtually dead at the Supreme Court level for
now, not only in education but also business and the military. Nothing in
O'Connor's opinion suggests that this isn't THE affrimative action
approach, ie, deference to institutional decisions to serve diversity as
long as a mechinized system of scores, points,etc., are not used.
Sanford Levinson
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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
