At the Border of Law and Politics: The Bakke Case and Affirmative Action

The Supreme Court case of W. ALLAN BAKKE v. REGENTS OF THE UNIVERSITY OF CALIFORNIA (1978) became a landmark in American constitutional and political culture.  Denied admission to the medical school at UC Davis, Bakke sued on the grounds that the program setting aside slots for minorities constituted reverse discrimination.  Because no past rulings dealing with race were exactly on point, both Bakke's supporters and opponents, including groups filing a record number of "friend of the court" briefs, could make intellectually respectable arguments.  In the parlance of the time, they argued respectively that the Constitution envisioned "color-blind" racial justice, prohibiting affirmative action programs; or that the Constitution required "fully sighted" affirmative action to remedy past discrimination.  In a murky mix of opinion, concurrences, and dissents the Court pronounced affirmative action constitutional while rejecting "quotas."  The justices' primary rationale, the need for diversity, was bland compared to what might have been said--for example, the need to serve underserved communities or compensate for past discrimination.

My paper will highlight a significant but (except among specialists in legal history) slighted aspect of the "rights revolution," the role of the judiciary.  BAKKE  also illuminates the country's ideological transition--involving both continuity and change--from the "sixties" to the "seventies."  The "sixties" fragmentation of liberalism continued.  Many unions and liberal Jewish groups filed friend of the court briefs on Bakke's behalf.  The Carter administration's brief supported affirmative action--but only after bitter internal disagreements.  Traditionalists, libertarians, and neoconservatives used their opposition to affirmative action in this case to win recruits for their growing conservative coalition.  Finally, BAKKE remains the basic legal bulwark of affirmative action in the face of constant challenges.  As with ROE v. WADE, a comparably important Supreme Court case of that era, the ""seventies" has not yet ended.