By approving race-conscious university admissions, (1) the Rehnquist Court echoed the opinions of Congress, the states, big business, academics, newspapers, and, to a lesser extent, the Bush administration. (2) In short, rather than join forces with the politically isolated opponents of affirmative action, the Court issued a ruling that conformed to social and political forces. For this reason, Grutter v. Bollinger was anything but surprising. Like most constitutional rulings, Grutter comported "with the policy views dominant among the lawmaking majorities of the United States." (3) Correspondingly, Grutter highlighted the pivotal role that elite opinion plays in shaping Court rulings. (4) Even though public opinion on affirmative action was mixed to negative, economic and social leaders (who play a defining role in shaping the Court's reputation) overwhelmingly supported racial preferences. (5) This Essay will highlight these social and political forces and, in so doing, explain why the Court had strong incentives to approve affirmative action. (5)
This Essay will also explain why the same forces that underlie Grutter also underlie Gratz v. Bollinger, (7) a companion case in which the Court rejected the University of Michigan's automatic awarding of a set number of points to all undergraduate minority applicants. By placing limits on how universities take race into account while approving the Law School's plan to treat race as a plus factor in "individualized" admissions decisions, (8) the Court recognized that support for affirmative action is qualified. Correspondingly, the Court's mixed decision allowed both the Bush administration and civil rights interests to rally around it. Finally, by disallowing one of the plans, the Court was able to portray itself as an independent check on government without the fear of a majoritarian backlash.
Grutter and Gratz, in other words, appear to be the work of a Court that maximizes its power by paying attention to the social and political forces that surround it. This depiction is directly at odds with recent depictions of the Rehnquist Court. By settling the 2000 presidential election and invalidating thirty-one federal laws between 1995 and 2002, the Court has been characterized as "right-wing," "conservative," "arrogant, self-aggrandizing, and unduly activist."(9) Grutter and other progressive 2002 term decisions, such as Lawrence v. Texas, (10) were therefore dubbed as "surprising" and "counterintuitive." (11) The "normally conservative high court" "upend[ed]" expectations by "play[ing] against type." (12)
The truth of the matter is that Grutter and other 2002-2003 term decisions follow the Rehnquist Court's practice of disappointing social conservatives. Eleven years ago, the Court dealt a seemingly fatal blow to the social conservative agenda by reaffirming both abortion fights under Roe v. Wade and banning school prayer under Engel v. Vitale. (13) The decisions of the 2002-2003 term are very much in keeping with earlier Rehnquist Court rulings on race, religion, and privacy. Specifically, the same social and political forces that stood in the way of the Court's embrace of the social conservative agenda in 1992 remain a roadblock today. For the Rehnquist Court, Grutter is a testament to continuity, not change.
Grutter, however, calls attention to how it is that the Supreme Court's identity is typically shaped by the Court's so-called swing Justices. On issues of social policy and federalism, Rehnquist Court decision making is largely defined by two Justices--Sandra Day O'Connor and Anthony Kennedy. Like prior swing Justices, O'Connor and Kennedy are sensitive to social and political forces. (14) For example, O'Connor, according to her brother Alan Day, "doesn't like to be part of polarizing decisions ... 'she takes it hard and feels it hard.'" (15) Kennedy is purported to pay careful attention to how his votes will impact his and the Court's reputation. (16) In other words, these Justices seem to look to signals sent to the Court by elected officials, elites, and the American people in sorting out their opinions.
This Essay is divided into two Parts. The first Part details how the Rehnquist Court has consistently heeded social and political forces in its decisionmaking. The second Part focuses on the Grutter decision. It describes the majoritarian forces that helped sway the Court and explains how the Court's decision reflects those social and political influences.
THE PAST IS PROLOGUE
Constitutional decision making is a dynamic process that involves all parts of the government and the people as well. (17) As Chief Justice William Rehnquist noted, the "currents and tides of public opinion lap at the courthouse door," for judges "go home at night and read the newspaper or watch the evening news on television; they talk to their family and friends about current events." (18) Supreme Court Justices also "reflect ... the views and values of the lawyer class from which the Court's members are usually drawn." (19) "[O]verwhelmingly upper-middle or upper-class and extremely well educated, usually at the nation's most elite universities," (20) the views of economic and social leaders matter more to the Court than to popularly elected lawmakers (who must appeal to popular sentiment in order to win elections). In particular, since the Justices' reputations are shaped by the media, law professors, and somewhat left-leaning lawyers' groups such as the American Bar Association, they maximize their status by taking elite opinion into account. (21)
Lacking the powers of purse and sword, moreover, the Court cannot resist "a determined and persistent lawmaking majority;" it can only put its preferences in place against "a weak majority." (22) In sorting out their personal views of how the Constitution should be interpreted, some Supreme Court Justices consider whether elected officials will comply with decisions. (23) These Justices have weaker preferences about the substantive issues before the Court and, consequently, are more willing to take account of the views of elites, elected officials, and the American people. (24)
The Supreme Court's practice of operating within parameters established by majoritarian forces is also tied to the judicial appointment process. Nominated by the President and confirmed by the Senate, Supreme Court Justices are products of the social and political forces at the time of their nomination. This process "favors persons with ambivalent, unknown or centrist views on the hotly contested issues of the day;" those with known "militant views ... need not apply." (25) Furthermore, even though Supreme Court Justices are insulated from political pressures such as election, several Justices have held elected office or worked closely with elected officials. (26) These Justices are accustomed to taking into account the views of interest groups, the American people, and other elected officials.
For its part, the Rehnquist Court follows this historical pattern. Social and political forces explain both its hesitancy to embrace the social conservative agenda and its willingness, at least from 1995 to 2002, to break significant doctrinal ground on federalism. (27) Consider, for example, the Court's federalism revival. Why did the Court limit Congress' power based on federalism principles, and why did it wait until 1995 to begin its revival? What prompted the Court to extend its somewhat ambiguous initial rulings into bolder statements about the limits of Congress' power? Why has the Court excluded race and gender from its Fourteenth Amendment, Section Five revolution? In answering these questions, it is useful to look to the majoritarian influences that shape the Justices' understanding of Congress and their power to limit Congress. Majoritarian forces that have given the Court both reason and incentive to limit Congress include the (then) ever-growing populist distrust of big government, the increasing willingness of candidates to embrace anti-Congress rhetoric, the Contract with America-spurred 1994 Republican takeover of Congress, the unwillingness of members of Congress to take issue with or even discuss Supreme Court decisions limiting federal powers, and the failure of interest groups to feel sufficiently threatened by the Court's anti-Congress decisions to mobilize in opposition to them. (28)
Social and political forces, especially Congress' support of civil and abortion rights, have also figured prominently in Rehnquist Court rulings on social issues. Unlike its federalism revival (where a coalition of five Justices joined forces to limit Congress' power), Justices Kennedy and O'Connor have refused to sign onto the conservative social agenda. Their refusal is almost certainly tied to majoritarian signals sent to the Court. From 1981-1992, for example, the Reagan and Bush administrations sought to reshape constitutional law through judicial appointments and Justice Department arguments. (29) These efforts, however, were strongly resisted by Congress, interest groups, and elites (especially academics and journalists). (30) For Justices Kennedy and O'Connor, battles between the White House, Congress, and other interests called attention to the costs of embracing the social conservative agenda. Starting in 1994, O'Connor and Kennedy often opposed granting certiorari in these cases, (31) pushing the Court away from contentious social issues and towards less controversial federalism cases. (32) More telling, some of their opinions refer to social and political forces in explaining why the Court cannot embrace conservative objectives. (33)
The best known example of this is Planned Parenthood v. Casey. (34) By reaffirming Roe, the Casey plurality (O'Connor, Kennedy, Souter) validated Senate Judiciary Committee efforts to preserve a constitutional right to abortion. By turning down Robert Bork's nomination and by making Roe the focus of subsequent...