Times: Why Context Matters in Race Cases

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New York Times writer Linda Greenhouse, who has won a Pulitzer Prize for her coverage of the U.S. Supreme Court, analyzes the justices’ opinions in the landmark affirmative action cases from Michigan:

As they approached the University of Michigan affirmative action cases, Greenhouse says, Justice Sandra Day O’Connor and Justice Clarence Thomas appeared to be responding to completely different cues.

For Justice O’Connor, the broad societal consensus in favor of affirmative action in higher education, as reflected in an outpouring of briefs on Michigan’s behalf from many of the country’s most prominent institutions, was clearly critical to her conclusion that the law school’s “holistic” and “individualized” consideration of race was not only acceptable but also, at least for the next 25 years, necessary to achieve a more equal society.

Justice Thomas, whose impassioned 31-page dissenting opinion in the law school case was almost precisely the length of Justice O’Connor’s majority opinion, took as his text not the briefs but his own life story. “I must contest the notion that the law school’s discrimination benefits those admitted as a result of it,” he said at the start of a remarkable series of paragraphs, most without footnotes, statistics or outside references, about the pain and stigma suffered by recipients of affirmative action.

Justice O’Connor observed in her opinion that “context matters when reviewing race-based governmental action under the Equal Protection Clause.” The context provided by the briefs from Fortune 500 companies, senior military officers, and colleges and universities big and small, public and private, quite clearly won the day for Michigan.

Link: http://www.nytimes.com/2003/06/25/national/25SCOT.html?pagewanted=1

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