Essay by Paul R. Baier
Justice Powell's Bakke balance, announced all alone twenty-five years ago, is now the law of the land. Hopwood is dead. This Essay of judicial personality and process traces the influence of Justice Powell's soft voice, his mediating way, through the competing judicial opinions in Gratz and Grutter. Bakke's balance is the formula by which the Court purports to decide both the University and the Law School's case. Gratz is no problem. It is faithful to Bakke's balance, but Grutter is a harder call. Justice O'Connor for the Court tells us she is applying the magic formula of “strict scrutiny,” but is she really? The Court splits over application of strict scrutiny to Michigan Law School, where the author taught in his youth. His Essay teaches what lies at the heart of his institutional mission in class: Magic formulae are no substitute for judicial judgment. What the author sees in Justice O'Connor's opinion for the Court is a new balance, Grutter's balance, which goes beyond Justice Powell in Bakke. The new emphasis on inclusion in Grutter suggests a new weighing of competing interests beyond the educational benefits achieved by racial and ethnic diversity in the classroom. This is the end approved by Justice Powell in Bakke, but debunked by the competing, strident roars of “Judicial Lions”—Justices Antonin Scalia and Clarence Thomas who are of the Categorical School of judicial process. Ironically, the first Justice John Marshall Harlan's categorical imperative, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” yielded in its day to Harlan's own mediating balance in the old Cumming case, a short three years after Justice Harlan's dissent in Plessy v. Ferguson. Justice O'Connor's Grutter opinion, drawing upon the tool of analogy in the judicial process, speaks of access, opportunity, and inclusion—an entirely new chord as the author hears it. Grutter sounds a new compelling interest and weighs the balance anew. Like Justice Powell before her, Justice O'Connor takes the way of mediation between America's past and America's future. Her method in Gratz and Grutter lies at the heart of the Court's judicial process in constitutional law, as the author has grown to understand it. Throughout his Essay, the author compares the mediating voice—the voice of balance—the voice of Justice Powell, to the other diverse voices of the Court's judicial personalities. In hard cases, there are no absolutes. The Court is at its best in mediating between categorical imperatives. This was Justice Powell's way in Bakke. His voice has been heard in Gratz and Grutter. The experiment continues. A sense of neighborhood, a sense of love of fellow man, a sense of shared destiny, not race hate, is the author's sense of Grutter's balance. Our Nation is better off for it. As to twenty-five years hence (Grutter's hope? holding?), to quote Justice Powell: “We shall see.”
About the Author
Paul R. Baier. George M. Armstrong, Jr., Professor of Law, Paul M. Hebert Law Center, Louisiana State University. A.B., Univ. of Cincinnati; J.D., Harvard Law School. Instructor in Law, Univ. Michigan Law School, 1970-71. Judicial Fellow, Sup. Ct U.S., 1975-76; Exec. Dir., La. Comm. on Bicentennial of U.S. Const., 1987-91; Scholar in Residence, La. Bar Found., 1990-92. Editor, The Bill of Rights and Judicial Balance: A Tribute to Lewis F. Powell, Jr. (L.S.B.A. 1989).
Citation
78 Tul. L. Rev. 1955 (2004)