THE MICHIGAN AFFIRMATIVE ACTION CASES: JUSTICE O’CONNOR, BAKKE REDUX, AND THE MICE THAT ROARED BUT DID NOT PREVAIL

Joel L. Selig*

On June 23, 2003, the United States Supreme Court issued its decisions upholding, against Equal Protection Clause challenge, the affirmative action plan for admissions to the University of Michigan Law School (the “Law School”), Grutter v. Bollinger,1 but holding unconstitutional the affirmative action plan for undergraduate admissions to the University of Michigan College of Literature, Science, and the Arts (“LSA”), Gratz v. Bollinger.2 In Grutter, the Court upheld the Law School program because student body diversity is a compelling state interest that can justify taking race into account in admissions decisions, if the use of race is narrowly tailored to serve that interest.3 The Law School satisfied the latter condition because it eschewed quotas and provided for a holistic, individualized consideration of each applicant, even though it had a goal of attaining a critical mass of underrepresented minority students, and even though it considered race a plus factor that might be decisive in the case of any particular minority applican t.4 In Gratz, the Court struck down the LSA program because, although Grutter had held student body diversity to be a compelling state interest, the LSA program was not narrowly tailored to achieve diversity through individualized consideration of each applicant.5 Rather, the LSA program used a scoring system that

The Conservative as Liberal: The Religion Clauses, Liberal Neutrality, and the Approach of Justice O’Connor

Donald L. Beschle *

The past few years have seen a flurry of litigation involving the reli gion clauses of the first amendment. The Supreme Court has spoken on the subject as frequently as it did during the 1960s, when it created the current legal framework for dealing with claims under the establishment and free exercise clauses. But the recent cases, while numerous, have contributed little to the development of first amendment thought. Although individualjustices have suggested new approaches, the Court has generally confined itself to measuring the facts before it against ex isting analytical yardsticks.

The continued use of a particular framework for analysis may be

taken as evidence of its essential soundness. However, there is reason to believe that in the case of the religion clauses it more clearly reflects the Court’s failure to create satisfactory alternatives, despite the need for such alternatives. The dominant religion clause tests, particularly for the establishment clause, have been easy targets for academic critics and judges alike.

The principal fl.aw in establishment clause thought is the acceptance of “separation” of church and state as the clause’s ultimate goal. Given the ways in which both institutions have evolved in the two centuries since Jefferson’s use of the term, separation of church and state is.simply impossible. An unrealistic goal is

TYSON R. SMITH*

Shades of Green: Justice O’Connor and the Environment

While generally labeled as a conservative, Justice Sandra Day O’Connor has shown a willingness to recognize and support envi ronmental issues on certain occasions. This Article will address the dynamics where Justice O’Connor seems the most willing to side with the environment and how to use this information to promote environmental protection. This Article seeks to define how her predominant jurisprudential philosophies tend toward the environmental middle ground and identifies potential oppor tunities to frame cases and issues that encourage better environ mental outcomes in future decisions.

INTRODUCTION

According to some commentators, Justice O’Connor is the Jus tice “least inclined to rule in favor of environmental interests,” but she is also “the Justice most prone to finding middle ground in environmental cases by issuing opinions that grant partial re lief to environmental concerns.”1 However, contrary to the for mer over-generalized conclusion, Justice O’Connor does allow environmental concerns and ecological principles to animate her judicial opinions and, as suggested by the latter conclusion, her philosophy towards judging in environmental cases often trumps her natural conservatism. The current Court has even been re ferred to as the “O’Connor Court” because her vote is the key

* J.D. 2003, Lewis and Clark Law School, Certificate in Environmental and Natu ral Resource Law; M.S. 1999, Stanford