Constitutional Sunsetting? Justice O'Connor's Closing Comments in Grutter

January 1, 2003

ITEM DETAILS
Type: Law review article
Author: Vikram David Amar & Evan H. Caminker
Source: Hastings Const. L.Q.
Citation: 30 Hastings Const. L.Q. 541 (2003)
Notes: Date is approximate

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Constitutional Sunsetting?: Justice O'Connor's Closing Comments in Grutter

by VIKRAM DAVID AMAR* AND Ev AN CAMINKER **

Most Supreme Court watchers were unsurprised that Justice Sandra Day O'Connor's vote proved pivotal in resolving the University of Michi gan affirmative action cases; indeed, Justice O'Connor has been in the ma jority in almost every case involving race over the past decade, and was in the majority in each and every one of the 5-4 decisions the Court handed down across a broad range of difficult issues last Term. Some smaller number of observers were unsurprised that Justice O'Connor decided (along with the four Justices who in the past have voted to allow latitude with regard to race-based affirmative action programs) to uphold the kind of flexible and individualistic use of race to promote a diverse student body embodied in the University of Michigan Law School's admissions policy. Justice O'Connor had often cited Justice Powell's opinion in Bakke1 fa vorably,2 and just two terms ago she had voted with the more "liberal" Jus tices in a 5-4 decision that permitted race consciousness in a voting redis

tricting setting. 3 But perhaps most were surprised by a comment Justice

O'Connor made for the Court at the end of the Grutter opinion: "We expect that 25 years from now, the use of racial preferences will no longer be nec essary to further the interest approved today.',4 In this short essay, we ex plore that provocative sentence, and tease out some of the doctrinal

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