More on the Seattle Decision

An editorial today from the NY Times by Adam Cohen appears to agree with On the Docket's prediction about the USSC striking down the integrationist-tie breaker.

Yet, the editorial appears to contribute the decision mostly to the changing ideology of the Court rather than constitutional jurisprudence and precedent. Cohen rather harshly blames Justice Thomas for the predicted outcome of the Seattle decision.

It is hard to say, whether or not Cohen is right, but the evidence from the oral argument transcripts appear to point in the other direction. Liberals on the Court such as Justice Breyer and Justice Souter appear to be the ones whom Cohen should blame. Both Souter and Breyer upheld the affirmative action program seen in the University of Michigan Law School case in 2003, but it appears that they have a different take on the integration plan by Seattle. They do so not because they are not liberal, but rather because the motivations and rationale behind the Seattle integration plan are different. Applicants are chosen solely on the basis of race, rather than an individualized selection process which also takes into account academic merit of the applicants. Take a look at what was said during oral arguments:

JUSTICE SOUTER: Let me help you out by taking you back to my question. One of the characteristics of the affirmative action cases was the displacement of some other otherwise generally acknowledged relevant criterion such as ability as shown in test scores, grade point averages, things like that; and that was a characteristic of those cases.

It is not a characteristic of this case, as I understand it.

***

JUSTICE BREYER: But I think that the point that Justice Souter is trying to make, as I understand it, is of course there are similarities to Gratz, they can choose, but there's a big difference. The similarity in Grutter, or the difference in Grutter and Gratz is that you had to prod a school that was supposed to be better than others, that the members of that school, the faculty and the administration tried to make it
better than others. It was an elite merit selection academy. And if you put the black person in, the white person can't get the benefit of that.

Here we have no merit selection system. Merit is not an issue. The object of the people who run this place is not to create a school better than others, it is to equalize the schools. That's in principle and in practice, if you look at the numbers, you see that the six schools that were at the top, their position would shift radically from year to year, preferences was about equal among them. They have the same curriculum, they have similar faculties, and I don't think anyone can say either in theory or in practice, that one of these schools happened to be like that prize of University of Michigan, a merit selection system. That, I think, was a major difference that he was getting at, why is this not the same kind of thing? That was at issue in Grutter and Gratz. Now what is your response to that?

Cohen makes a weighty claim against Justice Thomas. Thomas, himself, as Cohen points out does, not say very much during the oral arguments, so it is hard to tell what is going on his his mind about the intergrationist tie breaker at this point. Given previous rulings, though, he will most likely vote against it. Yet, it appears that the Seattle decision will have more than just Thomas advocating against it.