Breyer says affirmative-action case was his 'most important'

BY RAY DELGADO

U.S. Supreme Court Justice Stephen Breyer returned to his alma mater for a conference on diversity and confided that a decision last year to uphold an affirmative action policy at the University of Michigan Law School was the most important one he has had to make during his nearly 10-year term on the court.

Charles Ogletree, chair of the Board of Trustees Task Force on Minority Alumni Relations, questioned Justice Breyer about the Supreme Court's landmark affirmative action decision. Breyer said he was swayed by arguments from the military and businesses. "What they were telling us is that we have an institution that won’t function if it’s 100 percent white," Breyer said. Photo: Matt Sayles

Breyer, A.B. '59, was one of the keynote speakers during a three-day conference on diversity efforts geared toward the university's minority alumni last weekend. He talked candidly about a recent trip to South Africa to examine its fledgling democracy; the court's controversial decision that effectively handed George Bush the presidency in 2000; and a recent conflict-of-interest controversy involving Justice Antonin Scalia.

Justice Stephen Breyer considers a question asked at the Minority Alumni Conference. Photo: Matt Sayles

But his most frank comments came when asked by moderator Charles Ogletree how he came to reach his decision in last year's Grutter v. Bollinger case that upheld the right of Michigan's law school to consider race in its admissions decisions.

"I think it's the most important case that I've participated in since I was appointed to the Supreme Court," Breyer told a crowd of about 400 people gathered in Memorial Auditorium Saturday morning. "A lot turned on that case, and I don't think it was an easy case."

Breyer said the case centered on the court's interpretation of the 14th Amendment's equal protection clause and also, to a lesser degree, the notion that an entity like Michigan's law school has a right to determine its own policies. Breyer said he believed that the school's affirmative action policies were sound efforts to level the playing field for disadvantaged minorities -- "not to say that the law will protect you any less, but to give you the opportunities that everybody else has so that you can be treated equally."

He followed that remark with the admonition that he doesn't believe that all affirmative action efforts are right.

Breyer said he also paid close attention to legal briefs filed by the military, labor unions, businesses and other groups that said affirmative action was essential to their operations.

"What they were telling us is that we have an institution that won't function if it's 100 percent white," Breyer said. "And if we can't function, the country can't function. And if we cannot bring a degree of diversity into institutions across the United States, we will not have a country that will function as a democracy. If people don't feel that 'it's our country too,' how is this Constitution supposed to work?"

Breyer said his experience on the losing side of a 5-4 decision that paved the way for George Bush to become president after the 2000 election taught him the important lesson of "you win some, you lose some." And although he declined to say whether he agreed or disagreed with Scalia's decision to consider a case involving Vice President Dick Cheney after going on a recent duck-hunting trip with him, Breyer said he thought it was essential that Scalia or any Supreme Court justice be solely responsible for making a decision to recuse himself or herself from a case.

Breyer also talked about his recent trip to South Africa to see firsthand the country's progress toward democracy and compared that country's growing pains to the United States' struggles with civil rights. He noted the upcoming 50th anniversary of the court's Brown v. Board of Education ruling, which struck down racial segregation in schools, and said the country still needs to become a "nation of inclusion."

But when an audience member later pressed Breyer to relate his feelings about civil rights and inclusion to the politics surrounding the gay rights movement and a potential constitutional amendment to ban gay marriage, Breyer expressed reluctance to comment because he said he may eventually have to hear a case involving marriage rights for gays.

"How that would play out in the future is something that I can't be certain of," Breyer said. "When I have a real case in front of me, you have one view from when you're talking to your friends and another view when you've really thought it through."