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The Supreme Court begins its new term tomorrow as bitterly divided as it has ever been. There are three hardened camps: four very conservative justices, four liberals, and a moderate conservative, Justice Anthony Kennedy, hovering in between. The division into rigid blocs is unfortunate, because it makes the court seem more like a political body than a legal one. Justice Kennedy’s tendency to vote with the most conservative justices also means that there is a real danger the court will do serious damage to important freedoms this term.
At his confirmation hearings, Chief Justice John Roberts told the Senate he had “no agenda,” and famously compared his role to that of an umpire calling balls and strikes. He has also said he wants more consensus on the court, and fewer 5-to-4 decisions. Those were fine sound bites, but in reality Chief Justice Roberts quickly settled into a bloc with his fellow conservatives Samuel Alito, Antonin Scalia and Clarence Thomas. The controversial 5-to-4 decisions have kept coming.
It is striking how conservative the court is now. On race, it was for decades a proud force for racial integration. Last term, it ordered Seattle and Louisville, Ky., to stop their voluntary efforts to have children of different races attend school together. The court, once an important force for fairness in American society, now routinely finds dubious legal excuses to deny relief to criminal defendants, consumers and workers who have been mistreated.
The Roberts bloc has not adhered to any principled theory of judging. Its members are not reluctant to strike down laws passed by Congress, as critics of “judicial activism” are supposed to be, or reluctant to overturn the court’s precedents. The best predictor of how they will vote is to ask: What outcome would a conservative Republican favor as a matter of policy?
The court’s 4-to-4 split means that, on virtually any controversial question, Justice Kennedy decides what American law is. Last term, he was in the majority in all 24 cases decided by 5-to-4 votes. His opposition to abortion rights and affirmative action has pushed the court further to the right on those issues.
The court’s hyperpartisan approach to the law is unhealthy. The reason the Bush v. Gore ruling was so damaging to the court’s reputation was that the justices appeared to be acting as partisans, tossing aside long-held views to reach the political result they wanted. Today, the justices seem just as political, wrapping their views on controversial social issues in neutral-sounding legal doctrines.
The case that will most test the court’s ability to rise above partisanship is a challenge to Indiana’s voter ID law. Indiana is one of a growing number of states that require voters to present a government-issued photo ID. Such laws have been billed as anti-vote-fraud measures, but there is little evidence of vote fraud at the polls. The Republicans who have pushed these laws are trying to make it hard for poor and minority voters, who are less likely than other groups to have drivers’ licenses — and more likely to vote Democratic — to cast ballots. The court has traditionally championed voting rights, but a conservative majority may boost Republican chances in 2008 by endorsing this disturbing barrier to voting.
On Wednesday, the court will hear arguments in another voting case of particular interest to New Yorkers, a challenge to the use of judicial conventions, undemocratic institutions dominated by party hacks, to select state court judges. Lower courts rightly held this highly undemocratic system to be unconstitutional.
The court has also agreed to hear a challenge to the use of lethal injection to carry out the death penalty. There is strong evidence that the injections, which use a “cocktail” of drugs to put prisoners to death, work erratically and are needlessly painful. Justice Kennedy, who is concerned about death penalty abuses, may provide the fifth vote to hold that these executions violate the Eighth Amendment ban on cruel and unusual punishment.
The court will again take up civil liberties post-9/11 in a case about whether detainees held at the naval base in Guantánamo Bay have the right to challenge their confinement through habeas corpus. In the Military Commissions Act, Congress tried to take that right away from the prisoners. The court should hold that the Constitution requires that the detainees be given their day in court.
If the justices act as umpires and call balls and strikes, this term could produce some real victories in voting rights, the death penalty and civil liberties. It could result in some terrible setbacks in these areas, however, if — as critics of the Roberts court have said — the court is calling balls and strikes but has moved the strike zone far to the right.
Sunday, September 30
9/11 Is Over
By THOMAS L. FRIEDMAN
Not long ago, the satirical newspaper The Onion ran a fake news story that began like this:
“At a well-attended rally in front of his new ground zero headquarters Monday, former New York City Mayor Rudy Giuliani officially announced his plan to run for president of 9/11. ‘My fellow citizens of 9/11, today I will make you a promise,’ said Giuliani during his 18-minute announcement speech in front of a charred and torn American flag. ‘As president of 9/11, I will usher in a bold new 9/11 for all.’ If elected, Giuliani would inherit the duties of current 9/11 President George W. Bush, including making grim facial expressions, seeing the world’s conflicts in terms of good and evil, and carrying a bullhorn at all state functions.”
Like all good satire, the story made me both laugh and cry, because it reflected something so true — how much, since 9/11, we’ve become “The United States of Fighting Terrorism.” Times columnists are not allowed to endorse candidates, but there’s no rule against saying who will not get my vote: I will not vote for any candidate running on 9/11. We don’t need another president of 9/11. We need a president for 9/12. I will only vote for the 9/12 candidate.
What does that mean? This: 9/11 has made us stupid. I honor, and weep for, all those murdered on that day. But our reaction to 9/11 — mine included — has knocked America completely out of balance, and it is time to get things right again.
It is not that I thought we had new enemies that day and now I don’t. Yes, in the wake of 9/11, we need new precautions, new barriers. But we also need our old habits and sense of openness. For me, the candidate of 9/12 is the one who will not only understand who our enemies are, but who we are.
Before 9/11, the world thought America’s slogan was: “Where anything is possible for anybody.” But that is not our global brand anymore. Our government has been exporting fear, not hope: “Give me your tired, your poor and your fingerprints.”
You may think Guantánamo Bay is a prison camp in Cuba for Al Qaeda terrorists. A lot of the world thinks it’s a place we send visitors who don’t give the right answers at immigration. I will not vote for any candidate who is not committed to dismantling Guantánamo Bay and replacing it with a free field hospital for poor Cubans. Guantánamo Bay is the anti-Statue of Liberty.
Roger Dow, president of the Travel Industry Association, told me that the United States has lost millions of overseas visitors since 9/11 — even though the dollar is weak and America is on sale. “Only the U.S. is losing traveler volume among major countries, which is unheard of in today’s world,” Mr. Dow said.
Total business arrivals to the United States fell by 10 percent over the 2004-5 period alone, while the number of business visitors to Europe grew by 8 percent in that time. The travel industry’s recent Discover America Partnership study concluded that “the U.S. entry process has created a climate of fear and frustration that is turning away foreign business and leisure travelers and hurting America’s image abroad.” Those who don’t visit us, don’t know us.
I’d love to see us salvage something decent in Iraq that might help tilt the Middle East onto a more progressive pathway. That was and is necessary to improve our security. But sometimes the necessary is impossible — and we just can’t keep chasing that rainbow this way.
Look at our infrastructure. It’s not just the bridge that fell in my hometown, Minneapolis. Fly from Zurich’s ultramodern airport to La Guardia’s dump. It is like flying from the Jetsons to the Flintstones. I still can’t get uninterrupted cellphone service between my home in Bethesda and my office in D.C. But I recently bought a pocket cellphone at the Beijing airport and immediately called my wife in Bethesda — crystal clear.
I just attended the China clean car conference, where Chinese automakers were boasting that their 2008 cars will meet “Euro 4” — European Union — emissions standards. We used to be the gold standard. We aren’t anymore. Last July, Microsoft, fed up with American restrictions on importing brain talent, opened its newest software development center in Vancouver. That’s in Canada, folks. If Disney World can remain an open, welcoming place, with increased but invisible security, why can’t America?
We can’t afford to keep being this stupid! We have got to get our groove back. We need a president who will unite us around a common purpose, not a common enemy. Al Qaeda is about 9/11. We are about 9/12, we are about the Fourth of July — which is why I hope that anyone who runs on the 9/11 platform gets trounced.
Not long ago, the satirical newspaper The Onion ran a fake news story that began like this:
“At a well-attended rally in front of his new ground zero headquarters Monday, former New York City Mayor Rudy Giuliani officially announced his plan to run for president of 9/11. ‘My fellow citizens of 9/11, today I will make you a promise,’ said Giuliani during his 18-minute announcement speech in front of a charred and torn American flag. ‘As president of 9/11, I will usher in a bold new 9/11 for all.’ If elected, Giuliani would inherit the duties of current 9/11 President George W. Bush, including making grim facial expressions, seeing the world’s conflicts in terms of good and evil, and carrying a bullhorn at all state functions.”
Like all good satire, the story made me both laugh and cry, because it reflected something so true — how much, since 9/11, we’ve become “The United States of Fighting Terrorism.” Times columnists are not allowed to endorse candidates, but there’s no rule against saying who will not get my vote: I will not vote for any candidate running on 9/11. We don’t need another president of 9/11. We need a president for 9/12. I will only vote for the 9/12 candidate.
What does that mean? This: 9/11 has made us stupid. I honor, and weep for, all those murdered on that day. But our reaction to 9/11 — mine included — has knocked America completely out of balance, and it is time to get things right again.
It is not that I thought we had new enemies that day and now I don’t. Yes, in the wake of 9/11, we need new precautions, new barriers. But we also need our old habits and sense of openness. For me, the candidate of 9/12 is the one who will not only understand who our enemies are, but who we are.
Before 9/11, the world thought America’s slogan was: “Where anything is possible for anybody.” But that is not our global brand anymore. Our government has been exporting fear, not hope: “Give me your tired, your poor and your fingerprints.”
You may think Guantánamo Bay is a prison camp in Cuba for Al Qaeda terrorists. A lot of the world thinks it’s a place we send visitors who don’t give the right answers at immigration. I will not vote for any candidate who is not committed to dismantling Guantánamo Bay and replacing it with a free field hospital for poor Cubans. Guantánamo Bay is the anti-Statue of Liberty.
Roger Dow, president of the Travel Industry Association, told me that the United States has lost millions of overseas visitors since 9/11 — even though the dollar is weak and America is on sale. “Only the U.S. is losing traveler volume among major countries, which is unheard of in today’s world,” Mr. Dow said.
Total business arrivals to the United States fell by 10 percent over the 2004-5 period alone, while the number of business visitors to Europe grew by 8 percent in that time. The travel industry’s recent Discover America Partnership study concluded that “the U.S. entry process has created a climate of fear and frustration that is turning away foreign business and leisure travelers and hurting America’s image abroad.” Those who don’t visit us, don’t know us.
I’d love to see us salvage something decent in Iraq that might help tilt the Middle East onto a more progressive pathway. That was and is necessary to improve our security. But sometimes the necessary is impossible — and we just can’t keep chasing that rainbow this way.
Look at our infrastructure. It’s not just the bridge that fell in my hometown, Minneapolis. Fly from Zurich’s ultramodern airport to La Guardia’s dump. It is like flying from the Jetsons to the Flintstones. I still can’t get uninterrupted cellphone service between my home in Bethesda and my office in D.C. But I recently bought a pocket cellphone at the Beijing airport and immediately called my wife in Bethesda — crystal clear.
I just attended the China clean car conference, where Chinese automakers were boasting that their 2008 cars will meet “Euro 4” — European Union — emissions standards. We used to be the gold standard. We aren’t anymore. Last July, Microsoft, fed up with American restrictions on importing brain talent, opened its newest software development center in Vancouver. That’s in Canada, folks. If Disney World can remain an open, welcoming place, with increased but invisible security, why can’t America?
We can’t afford to keep being this stupid! We have got to get our groove back. We need a president who will unite us around a common purpose, not a common enemy. Al Qaeda is about 9/11. We are about 9/12, we are about the Fourth of July — which is why I hope that anyone who runs on the 9/11 platform gets trounced.
Saturday, September 29
The New Affirmative Action
The New Affirmative Action
The New York Times
September 30, 2007
By DAVID LEONHARDT
In another time, it wouldn’t have been too hard to guess where Frances Harris would have ended up going to college. She has managed to do very well in very difficult circumstances, and she is African-American. Her high school, in the Oak Park neighborhood of Sacramento, was shut down as an irremediable failure the spring before her freshman year, then reopened months later as a charter school. Midway through high school, her father developed heart problems and became an irritable fixture around the home. She also discovered that he was not actually her biological father. That was a man named Leroy who, when her mother took Harris to see him, simply said his name was George and waited for her to leave. In Harris’s senior year, her mother lost her job at a nursing home and the family filed for bankruptcy.
Harris somehow stayed focused on teenage life. She earned an A-minus average and she distinguished herself as a debater. Her basketball teammates sometimes teased her for using big words, but they also elected her co-captain. As she led me on a tour of her school and her neighborhood one day this summer, she introduced me around with an assured ease that most adults can’t manage, even if her sentences are peppered with “like,” “you know” and “Oh, my God.” Her bedroom in the bungalow she shares with her parents is a masterpiece of teenage energy, the walls covered with her prom-queen tiara, her purple-and-white basketball jersey (No. 3) and photos of her friends. “The hardest part of high school,” she says, “was to be smart and cool at the same time.” She decided her dream college was the University of California, Los Angeles.
Ten or 20 years ago, Frances Harris almost certainly would have been admitted. Her excellent grades might not have even been necessary, because Berkeley and U.C.L.A. — the jewels in the U.C. system — accepted almost all of the African-Americans who met the basic application requirements. To an admissions officer, Harris would have seemed like gold: diversity and achievement, wrapped up in a single kid.
But in the early 1990s, the elite campuses began to pull back from their aggressive affirmative-action policies, and in 1996, California voters passed the California Civil Rights Initiative, also known as Proposition 209. After that, race could no longer be a factor in government hiring or public-university admissions. The number of black students at both Berkeley and U.C.L.A. plummeted, and at U.C.L.A. the declines continued throughout the next decade. The reasons weren’t entirely clear, but they seemed to include some combination of the admissions office taking Proposition 209 to heart and black students falling further behind in the academic arms race. (Harris, for instance, scored a 22 on the ACT test — slightly above the national average and well below the U.C.L.A. average.) The changes on U.C.L.A.’s campus were hard to miss. In 1997, the freshman class included 221 black students; last fall it had only 100. In the region with easily the largest black population west of the Mississippi River, the top public university had a freshman class in which barely 1 in 50 students was black.
A U.C.L.A. graduate named Peter Taylor, a 49-year-old managing director at Lehman Brothers in Los Angeles, remembers picking up The Los Angeles Times outside his house on a Saturday morning in June of last year and reading that piece of news. Taylor, who is black, is a third-generation native of the city and one of U.C.L.A.’s most active alumni. Within days of reading about the latest decline in the number of black students, he began a campaign to reverse it. At a reception to honor U.C.L.A.’s new acting chancellor, a law professor named Norm Abrams, he greeted Abrams with a big smile and said, “Well, Norm, you’re stepping right into it, and you’ve got to deal with it.” Abrams soon named Taylor to lead a task force of students, faculty, alumni and outsiders from places like the Urban League and the First A.M.E. Church. It spent the next year trying to get more black students to apply, more black applicants to be admitted and more black admits to enroll. In essence, Taylor’s group was trying to figure out how to bring a student like Frances Harris to U.C.L.A. without breaking the law — or at least without getting caught. What they have achieved may well show us the future of affirmative action.
Peter Taylor’s office on the 25th floor of the MGM Building in Century City looks out over the Fox movie lot and a golf course; in the distance downtown Los Angeles rises. Taylor has lived in an artsy neighborhood of Los Angeles called Silver Lake since he was a child. In the aftermath of the Watts riots, his father, then a school administrator and one of the few black men to hold such a job, became the principal of Locke High School in South-Central Los Angeles. Taylor himself went on from U.C.L.A. to earn a master’s degree in public policy and work for Bill Clinton’s 1992 campaign before joining Lehman Brothers. When we were talking in his office, he apologetically interrupted our conversation and spent 10 minutes on the phone trying to persuade the person on the other end not to make any changes in a coming bond offering. There was, he kept saying, no point in doing something that might upset the market. But Taylor’s cautious, corporate style can be deceiving. He doesn’t mind a good fight. “Prop. 209 has made things more challenging,” he said. “It has created a new paradigm. But there are still things that can be done.” I asked him whether those things might include civil disobedience, and Taylor surprised me by replying: “Exactly when you cross over into civil disobedience is not always clear. And I probably come down on the side of pushing the outer limits. I’m much more of the attitude of, ‘So what if someone sues?’ If you lose, you at least define the line a little more clearly. You say, ‘Mea culpa,’ and you don’t do it anymore.”
The heart of California’s higher-education problem, according to Taylor, is that Proposition 209 created a patently impossible situation. The law says that universities can’t consider race, even though race has an enormous effect on the lives of applicants. California’s best high schools offer so many A.P. and honors classes — which confer bonus points on a student’s G.P.A. — that the average G.P.A. of white and Asian freshmen at U.C.L.A. is now 4.2. At many of the largely black high schools around Los Angeles, it is sometimes impossible to do much better than a 4.0, because of the relative lack of A.P. classes. Black students at better high schools have a much easier time, but it’s not as if they are keeping up with their peers. Even if U.C.L.A. tried to get around Proposition 209 by giving a big leg up to low-income applicants, it wouldn’t increase its black population very much. At every rung of the socioeconomic ladder, the academic record of black students is worse than that of other groups. As Taylor says: “There is a great deal of pressure to look for a proxy for race. There is no proxy for race.”
He and many other defenders of affirmative action consider this to be a self-evident fact, but there has also been a good deal of social science to support the view that the specific problems surrounding race — including discrimination — endure. One illustrative study found that résumés with typically black names are less likely to lead to job interviews than those with typically white names. Other recent studies have looked at intelligence testing. There have long been two uncomfortable facts in this area: Intelligence, indisputably, is in part genetic; and every intelligence test shows a gap between black Americans and others. For a long time, scientific research wasn’t very good at explaining this gap. But it has gotten better lately. For one thing, the gap between white and black adults has narrowed significantly since 1970, according to work by the noted researchers William Dickens and James Flynn. Four decades is too short a time period for the gene pool to change, but it’s not too short for environment to improve. Most intriguing, Roland Fryer and Steven D. Levitt, two economists (the latter is one of this magazine’s Freakonomics columnists), have found there to be essentially no gap between 1-year-old white and black children of the same socioeconomic status.
There are still vigorous debates about all this work — intelligence tests of 1-year-olds are iffy, for instance — but it points in one direction. Innate intelligence may be partly genetic, but it doesn’t seem to vary by race. So while race may not be the only source of disadvantage in today’s society, it is certainly one of them.
Since affirmative action began in the mid-1960s, it has had both an explicit role and an implicit one in American life. Explicitly, it has been about race and, to a lesser degree, sex — a policy to make up for centuries of oppression and to ensure diversity. But there has always been a broader notion to affirmative action as well. It has been the most serious effort of any kind to ensure equality of opportunity, without regard to wealth or poverty. When all else failed — the War on Poverty, welfare, public schools — affirmative action would be there to help less-fortunate Americans overcome the circumstances of their origins. “Ability is not just the product of birth,” Lyndon Johnson said when he effectively created affirmative action during a graduation speech at Howard University in 1965. “Ability is stretched or stunted by the family that you live with and the neighborhood you live in — by the school you go to and the poverty or the richness of your surroundings. It is the product of a hundred unseen forces playing upon the little infant, the child and, finally, the man.”
The more expansive idea of affirmative action as a counterweight to those “unseen forces” has become tightly linked to the self-image of American universities. Above all else, they are supposed to be meritocracies. To be truly meritocratic, a college must be diverse — or else accept that some groups in society have less merit than others and their underrepresentation can’t be helped. University administrators clearly reject this second view, and as a result the best colleges are now filled with students of both sexes and every imaginable race and religion. If you were to ask admissions officers whether they also gave special consideration to low-income applicants — whether they gave them credit for overcoming Johnson’s unseen forces — the officers would say that, absolutely, they did.
In truth, however, they did not. Three years ago, William Bowen (the former president of Princeton) and two other researchers discovered what was really going on. They persuaded 19 elite colleges — including Harvard, Middlebury and Virginia — to let them analyze their admissions records. The easiest way to understand the results is to imagine a group of students who each have the same SAT scores. Holding that equal, a recruited athlete was 30 percentage points more likely to be admitted than a nonathlete. A black, Latino or Native American student was 28 percentage points more likely to be admitted than a white or Asian student. A legacy received a 20-percentage-point boost over someone whose parents hadn’t attended that college. And low-income students? They received no advantage whatsoever. A poor white kid from upstate New York would be treated no differently from a white kid in Chappaqua. Frances Harris would get no more of a leg up than the black daughter of corporate lawyers.
Bowen says he doesn’t believe that admissions deans were lying when they said that their affirmative-action programs took social class into account. The colleges apparently put even more stock in the polish that comes with affluence — the well-edited essay, the summer trip to Guatemala, the Arabic language lessons. In any case, the poor lose.
There are some big problems with this approach to affirmative action. For one thing, it rests on a very rickety base of political support. Colleges often resort to huge preferences to create a racially diverse student body, especially if they haven’t been giving any advantage to low-income applicants, who are of course disproportionately minorities. And many of the beneficiaries of the preferences end up being upper-middle-class minority students, since they tend to have better test scores than poor minorities. The helping hand that goes to these relatively well-off nonwhite students strikes many people as unjust. It makes it seem as if affirmative action isn’t making good on its larger promise. Affirmative action becomes about mere diversity — and not even all forms of diversity — rather than fairness. Politically, that has made it weaker and weaker.
In the mid-1990s, a businessman in California named Ward Connerly began making some of these very criticisms. Connerly was born in Louisiana in 1939; his father left the family, and his mother died when he was a little boy. So he was sent West to Sacramento to be raised by his grandmother. He eventually began working for the state government, where he became friends with Pete Wilson, a young Republican legislator. After Wilson was elected governor in 1990, he named Connerly to the University of California’s board of regents, and Connerly began pressuring the university to cut back on race-based preferences. His efforts culminated in Proposition 209.
Connerly, not least because he is black, was the politically perfect face of the anti-affirmative-action movement. He argued then, as he still does, that the patchwork of diverse campuses and workplaces created by affirmative action has deluded the country into thinking that it is solving its racial problems. In truth, he says, the policy has actually made it harder for blacks to close the achievement gap with whites. “It’s not genetic, I’m convinced,” he told me this summer. “So what is it? I think it’s largely self-imposed by black people who don’t put as much emphasis on academic achievement as they once did and as other groups do now.” Connerly will tell you that he ended up going to college (at Sacramento State) because his grandmother pushed him to read books all the time.
Many people reject his argument as simplistic, if not worse. But whatever you think of his solution, it’s hard not to find some truth in his critique of traditional affirmative action. Certainly, voters seem to feel this way. Last year, Michigan passed an initiative identical to Proposition 209, and, thanks to Connerly, several other states are likely to vote on such proposals next year. Soon, more universities may find themselves in the same situation as the University of California.
There is almost an iron law of higher education: the more selective a school is, the fewer low-income students it has. At Harvard and Yale, only about 10 percent of undergraduates receive federal Pell Grants. (Typically, students from the bottom 40 percent of the income distribution are eligible for the Pell.) Even at top public universities, the share is often 15 percent or less. The colleges that are filled with poor and middle-class students almost invariably have low graduation rates. So their graduates are more likely to end up on the wrong side of the 21st century’s educational divide. A bachelor’s degree seems out of reach to a large portion of the American population, and, as a result, other countries have closed the gap in educational attainment with the United States over the last generation.
There are really only two exceptions to the rule, two universities that are both elite and economically diverse: U.C.L.A. and Berkeley. A chart on U.S. News & World Report’s Web site does a nice job of summarizing just how unusual they are. It lists the percentage of Pell Grant recipients at each university in the magazine’s famous Top 25 ranking. U.C.L.A. tops the list, at 37 percent, and Berkeley comes next, at 31 percent. In third place is Columbia, with just 15 percent.
To be fair, the main explanation for this gap is demographic happenstance. California is filled with low-income immigrant families, especially from Asia and Latin America, with high-achieving children. But a set of deliberate policies also plays an important role. The University of California accepts far more transfer students, mainly from community colleges, than most colleges. At U.C.L.A., about one-third of the admitted students arrive as transfers instead of as freshmen. When I was on campus, I met a 27-year-old Mexican immigrant named Daniel Flores, who was admitted three years ago as a junior even though, as Flores told me, “I barely graduated high school.” His first job after high school was in one of U.C.L.A.’s dining halls, where he realized that he would need more education if he ever wanted to make much more than minimum wage. He then enrolled in a community college in West Los Angeles and excelled there. When he was 18 years old — the only point in life when elite colleges usually consider candidates — no sane admissions officer would have let him in. By the time he was 23, it was clear he had mainly just lacked for good opportunities. Earlier this year, he graduated from U.C.L.A.; and there are hundreds of other students with life stories not so different from Flores’s who are walking through the Italianate buildings on the university’s lush campus.
If anything, Proposition 209 may have helped keep the U.C. campuses as economically diverse as they are. Desperate to maintain some racial diversity, university officials set up outreach programs in lower-income school districts, as James Traub described in this magazine several years ago. One of them, run by U.C. Davis, which is outside of Sacramento, visited Frances Harris’s elementary school. It was around this time that Harris first told her parents that she planned to go to college. Over the years, when things got tough, they both made a point of reminding her of her vow. “At times I got discouraged, and they said, ‘You’ve said you’re going to go to college, and you’re going to go,’ ” she recalled. A framed “reservation for college” certificate from the Davis program still hangs in her bedroom.
After the initiative passed, the U.C. campuses also put more weight on students’ socioeconomic backgrounds when they made admissions decisions. Richard Sander, a U.C.L.A. law professor who has become a critic of affirmative action, studied admissions data at Berkeley and found that, all else being equal, lower-income students had a better chance of getting in after 1997 than before. Together, these various class-based efforts have helped the share of Pell Grant students at both U.C.L.A. and Berkeley to hold steady over the last decade, even as it has declined at many similar colleges.
You can make an argument, in fact, that the single most impressive university in the country today is U.C.L.A. It receives more freshman applications than any other — 50,744 this year — and, unlike many of its peers, it can legitimately claim to be an engine of opportunity. About 90 percent of its students, whether they enter as freshmen or transfers, eventually graduate. What City College of New York was to the 20th century, U.C.L.A. is to the 21st.
And now, maybe, it is figuring out ways to solve its race problem.
One night in march of this year, Peter Taylor and three other U.C.L.A. alumni met in his office to go over a big stack of U.C.L.A. applications from students who had already been admitted. Over sandwiches, the four of them — none of whom was a university employee — helped determine how much financial aid each student would get. This was one of the “bureaucratic cover-me exercises,” as Taylor puts it, at the heart of the new diversity push at U.C.L.A.
In the previous few months, Taylor and his group had raised $1.7 million for scholarships, the plan being to offer virtually all of it, immediately, to admitted black students. The easiest thing to do would have been to hand over the money to the U.C.L.A. Foundation, which holds and invests the university’s endowment, and then allow financial-aid officers to give it away as they saw fit. But U.C.L.A.’s general counsel said that allowing the foundation to handle funds specifically set aside for black students might violate the law. And letting the financial-aid office disburse the money almost certainly would have done so, since Proposition 209 prohibited colleges from recruiting students and offering scholarships based on race. But it didn’t prevent student and alumni groups from doing so. In effect, Taylor and his task force began outsourcing work that normally would have been done by the university.
Students and alumni stepped up their recruiting efforts. They visited high schools and set up a phone bank, with the help of a sympathetic alumnus who owned a call center, to reach out to black high-school seniors. Southwest Airlines donated plane tickets, helping black students who had been admitted to visit the campus. (A survey in 2005 had shown that admitted students were far more likely to choose U.C.L.A. if they had visited it. If you’ve been to the campus, this won’t surprise you.) One program that greeted prospective black students, called Black by Popular Demand, was run by the African Student Union and the Black Alumni Association. Another program — Scholars Days — was aimed broadly at less-than-privileged students, and it was run by the university. The two were scheduled to overlap.
This outsourcing was the second part of the task force’s two-pronged strategy. The group also urged U.C.L.A.’s faculty senate last year to alter the admissions process. In the past, the admissions office divided every application between two readers: one evaluated a student’s academic record, the other looked at extracurricular activities and “life challenges.” Berkeley, by contrast, had taken a more holistic approach, with a single reader judging an entire application, and Berkeley was attracting more black students than U.C.L.A. Why? Maybe the holistic approach takes better account of the subtle obstacles that black students face — or maybe the readers, when looking at a full application, ended up practicing a little under-the-table affirmative action.
Last fall, U.C.L.A. made the switch. Two applications readers I interviewed said that they had received clear, written instructions not to consider race and that they hadn’t. (There are 150 readers in all, a mix of university employees and paid outsiders.) On the other hand, applicants seemed to understand that something had changed. Daniel Fogg, a computer programmer in the admissions office and an application reader, told me that he noticed more students mentioning race in their essays this year.
Whatever the reasons, every phase of Taylor’s campaign turned out to be a success. More than 2,400 black students applied last spring, up 13 percent from the previous year. Their admission rate rose to 16.2 percent, from 11.5 percent. Of those who were admitted, slightly more than half said yes, up from 41 percent in 2006. In all, about 200 African-American freshmen started classes last week, double the number the year before.
One of them was Frances Harris. Back at her high school in Sacramento this spring, a group of seniors decided to celebrate their school’s turnaround by photocopying their college acceptance letters and taping them to the walls. An entire hallway was filled with hundreds of letters. Until I stood in the hallway with Harris, I wasn’t sure it was possible to find any part of today’s college-application process inspiring. Eleven of the letters were hers, including ones from Pitzer College, Boston University, U.C.L.A. and U.C. Davis. (Berkeley rejected her.) She liked B.U., but it seemed too far away, especially from her mother’s perspective. So Harris’s decision came down to Pitzer, which offered her nearly a full scholarship, and U.C.L.A. In the end, a $1,000 scholarship from Taylor’s group, a campus visit (flight courtesy of Southwest) and a phone call from U.C.L.A.’s director of financial aid — a combination of official recruiting and outsourced recruiting — pulled her toward U.C.L.A. “The biggest thing was seeing so many beautiful, intellectual black young students, being cool and having discussions about calculus,” she said. “It was so pure. I was so impressed. It was amazing.”
Harris’s parents and her biological father all attended her high-school graduation. In late July, her parents drove her to Los Angeles so she could attend a six-week voluntary summer school that is officially open to incoming freshmen of all races but is dominated by black and Latino students. I saw Harris on campus in August, and she told me that she missed her friends from home but was happy to be a college student. On her first paper, in English composition, she got a B-plus, and on her second she got an A-minus. She’s thinking about becoming a pre-med student. Next summer, she plans to go to Washington to work as an intern with the new chancellor of the school system there, Michelle Rhee, whom Harris met through her high school.
A few weeks after getting to U.C.L.A., Harris wrote an e-mail message to P. K. Diffenbaugh, one of her old teachers, telling him to send some of his current students to visit her soon, so they could get excited about college. “In my comparative English class we read a book a week. It goes superfast so encourage your students not to fall off,” she wrote. “It’s like the major leagues. . . . Academia!!!!”
The big question that hangs over U.C.L.A.’s success, of course, is whether the university broke the law. Looking at the numbers, it’s hard not to conclude that race was a factor in this year’s admissions decisions. The average SAT score for admitted African-American students fell 45 points this year, to 1,738. For Asian, Latino and white students, the averages were much more stable. “I’m quite confident that U.C. factors race in, in various ways,” said Sander, the U.C.L.A. law professor and affirmative-action critic. “There is no way to explain the disparities otherwise.” He has filed a public-information request that would allow him to examine the data more closely.
In particular, U.C.L.A.’s experience suggests that some tension between race and class in the admissions process may be inevitable. Even as the number of low-income black freshmen soared this year, the overall number of low-income freshmen fell somewhat. The rise in low-income black students was accompanied by a fall in low-income Asian students — not a decline in well-off students. U.C.L.A. administrators say they don’t fully understand why.
In a way, though, the question of whether race was a factor is itself misplaced. Proposition 209 forbids universities to consider race, but it doesn’t stop them from considering disadvantage. So what if U.C.L.A. is somehow taking into account the disadvantages that black students face because of their race? Isn’t that legal? And isn’t it just? As Tom Lifka, a U.C.L.A. assistant vice chancellor who oversees admissions, said, “It’s the fallacy of 209 that you can immediately move to a system that doesn’t take account of race and that treats everybody fairly.” Lifka said he was confident that U.C.L.A.’s current system could withstand legal scrutiny.
I asked these same questions about race and fairness of Connerly, who does favor preferences based on socioeconomic status (as do almost 85 percent of Americans, according to a 2005 New York Times poll). His first objection was constitutional: he believes the Supreme Court has given colleges very narrow instructions on when and how to consider race. Beyond that, he finds it hard to imagine that colleges would be able to strike the appropriate balance. “I suppose you could craft some kind of system that says, ‘We’re going to acknowledge that there has been and continues to be discrimination in our society,’ ” he said. “But I believe it is almost impossible to decide on the acceptable range — say, from 1 to 10 — to take race into account.”
He may well be right. But it sure seems worth the effort. Somewhat accidentally, U.C.L.A. appears to have gotten much closer to the ideal answer than most American universities. Unlike those of other elite colleges, its student body isn’t dominated merely by the best and brightest of the upper middle class. U.C.L.A. has also figured out how to do a bit better by the standard diversity benchmarks than it had been doing. Despite all the political heat that still surrounds the issue in California, its universities seem to be pointing to a better version of affirmative action — one that uses a little less race and a lot more class. “What would be nice is if we could craft a social compromise that could keep the best of the program while admitting some of its flaws,” says Sander, who supports the idea of affirmative action, despite his criticisms of the current system. “It’s way beyond, ‘Mend it, don’t end it.’ Let’s fundamentally restructure this and be much more aware of class. If we did that, we’d build a much bigger consensus and take a lot of wind out of the sails of Ward Connerly.” Such a consensus might show us, finally, how to put the accomplishments of a student like Frances Harris into the right perspective.
David Leonhardt is an economics columnist for The New York Times.
The New York Times
September 30, 2007
By DAVID LEONHARDT
In another time, it wouldn’t have been too hard to guess where Frances Harris would have ended up going to college. She has managed to do very well in very difficult circumstances, and she is African-American. Her high school, in the Oak Park neighborhood of Sacramento, was shut down as an irremediable failure the spring before her freshman year, then reopened months later as a charter school. Midway through high school, her father developed heart problems and became an irritable fixture around the home. She also discovered that he was not actually her biological father. That was a man named Leroy who, when her mother took Harris to see him, simply said his name was George and waited for her to leave. In Harris’s senior year, her mother lost her job at a nursing home and the family filed for bankruptcy.
Harris somehow stayed focused on teenage life. She earned an A-minus average and she distinguished herself as a debater. Her basketball teammates sometimes teased her for using big words, but they also elected her co-captain. As she led me on a tour of her school and her neighborhood one day this summer, she introduced me around with an assured ease that most adults can’t manage, even if her sentences are peppered with “like,” “you know” and “Oh, my God.” Her bedroom in the bungalow she shares with her parents is a masterpiece of teenage energy, the walls covered with her prom-queen tiara, her purple-and-white basketball jersey (No. 3) and photos of her friends. “The hardest part of high school,” she says, “was to be smart and cool at the same time.” She decided her dream college was the University of California, Los Angeles.
Ten or 20 years ago, Frances Harris almost certainly would have been admitted. Her excellent grades might not have even been necessary, because Berkeley and U.C.L.A. — the jewels in the U.C. system — accepted almost all of the African-Americans who met the basic application requirements. To an admissions officer, Harris would have seemed like gold: diversity and achievement, wrapped up in a single kid.
But in the early 1990s, the elite campuses began to pull back from their aggressive affirmative-action policies, and in 1996, California voters passed the California Civil Rights Initiative, also known as Proposition 209. After that, race could no longer be a factor in government hiring or public-university admissions. The number of black students at both Berkeley and U.C.L.A. plummeted, and at U.C.L.A. the declines continued throughout the next decade. The reasons weren’t entirely clear, but they seemed to include some combination of the admissions office taking Proposition 209 to heart and black students falling further behind in the academic arms race. (Harris, for instance, scored a 22 on the ACT test — slightly above the national average and well below the U.C.L.A. average.) The changes on U.C.L.A.’s campus were hard to miss. In 1997, the freshman class included 221 black students; last fall it had only 100. In the region with easily the largest black population west of the Mississippi River, the top public university had a freshman class in which barely 1 in 50 students was black.
A U.C.L.A. graduate named Peter Taylor, a 49-year-old managing director at Lehman Brothers in Los Angeles, remembers picking up The Los Angeles Times outside his house on a Saturday morning in June of last year and reading that piece of news. Taylor, who is black, is a third-generation native of the city and one of U.C.L.A.’s most active alumni. Within days of reading about the latest decline in the number of black students, he began a campaign to reverse it. At a reception to honor U.C.L.A.’s new acting chancellor, a law professor named Norm Abrams, he greeted Abrams with a big smile and said, “Well, Norm, you’re stepping right into it, and you’ve got to deal with it.” Abrams soon named Taylor to lead a task force of students, faculty, alumni and outsiders from places like the Urban League and the First A.M.E. Church. It spent the next year trying to get more black students to apply, more black applicants to be admitted and more black admits to enroll. In essence, Taylor’s group was trying to figure out how to bring a student like Frances Harris to U.C.L.A. without breaking the law — or at least without getting caught. What they have achieved may well show us the future of affirmative action.
Peter Taylor’s office on the 25th floor of the MGM Building in Century City looks out over the Fox movie lot and a golf course; in the distance downtown Los Angeles rises. Taylor has lived in an artsy neighborhood of Los Angeles called Silver Lake since he was a child. In the aftermath of the Watts riots, his father, then a school administrator and one of the few black men to hold such a job, became the principal of Locke High School in South-Central Los Angeles. Taylor himself went on from U.C.L.A. to earn a master’s degree in public policy and work for Bill Clinton’s 1992 campaign before joining Lehman Brothers. When we were talking in his office, he apologetically interrupted our conversation and spent 10 minutes on the phone trying to persuade the person on the other end not to make any changes in a coming bond offering. There was, he kept saying, no point in doing something that might upset the market. But Taylor’s cautious, corporate style can be deceiving. He doesn’t mind a good fight. “Prop. 209 has made things more challenging,” he said. “It has created a new paradigm. But there are still things that can be done.” I asked him whether those things might include civil disobedience, and Taylor surprised me by replying: “Exactly when you cross over into civil disobedience is not always clear. And I probably come down on the side of pushing the outer limits. I’m much more of the attitude of, ‘So what if someone sues?’ If you lose, you at least define the line a little more clearly. You say, ‘Mea culpa,’ and you don’t do it anymore.”
The heart of California’s higher-education problem, according to Taylor, is that Proposition 209 created a patently impossible situation. The law says that universities can’t consider race, even though race has an enormous effect on the lives of applicants. California’s best high schools offer so many A.P. and honors classes — which confer bonus points on a student’s G.P.A. — that the average G.P.A. of white and Asian freshmen at U.C.L.A. is now 4.2. At many of the largely black high schools around Los Angeles, it is sometimes impossible to do much better than a 4.0, because of the relative lack of A.P. classes. Black students at better high schools have a much easier time, but it’s not as if they are keeping up with their peers. Even if U.C.L.A. tried to get around Proposition 209 by giving a big leg up to low-income applicants, it wouldn’t increase its black population very much. At every rung of the socioeconomic ladder, the academic record of black students is worse than that of other groups. As Taylor says: “There is a great deal of pressure to look for a proxy for race. There is no proxy for race.”
He and many other defenders of affirmative action consider this to be a self-evident fact, but there has also been a good deal of social science to support the view that the specific problems surrounding race — including discrimination — endure. One illustrative study found that résumés with typically black names are less likely to lead to job interviews than those with typically white names. Other recent studies have looked at intelligence testing. There have long been two uncomfortable facts in this area: Intelligence, indisputably, is in part genetic; and every intelligence test shows a gap between black Americans and others. For a long time, scientific research wasn’t very good at explaining this gap. But it has gotten better lately. For one thing, the gap between white and black adults has narrowed significantly since 1970, according to work by the noted researchers William Dickens and James Flynn. Four decades is too short a time period for the gene pool to change, but it’s not too short for environment to improve. Most intriguing, Roland Fryer and Steven D. Levitt, two economists (the latter is one of this magazine’s Freakonomics columnists), have found there to be essentially no gap between 1-year-old white and black children of the same socioeconomic status.
There are still vigorous debates about all this work — intelligence tests of 1-year-olds are iffy, for instance — but it points in one direction. Innate intelligence may be partly genetic, but it doesn’t seem to vary by race. So while race may not be the only source of disadvantage in today’s society, it is certainly one of them.
Since affirmative action began in the mid-1960s, it has had both an explicit role and an implicit one in American life. Explicitly, it has been about race and, to a lesser degree, sex — a policy to make up for centuries of oppression and to ensure diversity. But there has always been a broader notion to affirmative action as well. It has been the most serious effort of any kind to ensure equality of opportunity, without regard to wealth or poverty. When all else failed — the War on Poverty, welfare, public schools — affirmative action would be there to help less-fortunate Americans overcome the circumstances of their origins. “Ability is not just the product of birth,” Lyndon Johnson said when he effectively created affirmative action during a graduation speech at Howard University in 1965. “Ability is stretched or stunted by the family that you live with and the neighborhood you live in — by the school you go to and the poverty or the richness of your surroundings. It is the product of a hundred unseen forces playing upon the little infant, the child and, finally, the man.”
The more expansive idea of affirmative action as a counterweight to those “unseen forces” has become tightly linked to the self-image of American universities. Above all else, they are supposed to be meritocracies. To be truly meritocratic, a college must be diverse — or else accept that some groups in society have less merit than others and their underrepresentation can’t be helped. University administrators clearly reject this second view, and as a result the best colleges are now filled with students of both sexes and every imaginable race and religion. If you were to ask admissions officers whether they also gave special consideration to low-income applicants — whether they gave them credit for overcoming Johnson’s unseen forces — the officers would say that, absolutely, they did.
In truth, however, they did not. Three years ago, William Bowen (the former president of Princeton) and two other researchers discovered what was really going on. They persuaded 19 elite colleges — including Harvard, Middlebury and Virginia — to let them analyze their admissions records. The easiest way to understand the results is to imagine a group of students who each have the same SAT scores. Holding that equal, a recruited athlete was 30 percentage points more likely to be admitted than a nonathlete. A black, Latino or Native American student was 28 percentage points more likely to be admitted than a white or Asian student. A legacy received a 20-percentage-point boost over someone whose parents hadn’t attended that college. And low-income students? They received no advantage whatsoever. A poor white kid from upstate New York would be treated no differently from a white kid in Chappaqua. Frances Harris would get no more of a leg up than the black daughter of corporate lawyers.
Bowen says he doesn’t believe that admissions deans were lying when they said that their affirmative-action programs took social class into account. The colleges apparently put even more stock in the polish that comes with affluence — the well-edited essay, the summer trip to Guatemala, the Arabic language lessons. In any case, the poor lose.
There are some big problems with this approach to affirmative action. For one thing, it rests on a very rickety base of political support. Colleges often resort to huge preferences to create a racially diverse student body, especially if they haven’t been giving any advantage to low-income applicants, who are of course disproportionately minorities. And many of the beneficiaries of the preferences end up being upper-middle-class minority students, since they tend to have better test scores than poor minorities. The helping hand that goes to these relatively well-off nonwhite students strikes many people as unjust. It makes it seem as if affirmative action isn’t making good on its larger promise. Affirmative action becomes about mere diversity — and not even all forms of diversity — rather than fairness. Politically, that has made it weaker and weaker.
In the mid-1990s, a businessman in California named Ward Connerly began making some of these very criticisms. Connerly was born in Louisiana in 1939; his father left the family, and his mother died when he was a little boy. So he was sent West to Sacramento to be raised by his grandmother. He eventually began working for the state government, where he became friends with Pete Wilson, a young Republican legislator. After Wilson was elected governor in 1990, he named Connerly to the University of California’s board of regents, and Connerly began pressuring the university to cut back on race-based preferences. His efforts culminated in Proposition 209.
Connerly, not least because he is black, was the politically perfect face of the anti-affirmative-action movement. He argued then, as he still does, that the patchwork of diverse campuses and workplaces created by affirmative action has deluded the country into thinking that it is solving its racial problems. In truth, he says, the policy has actually made it harder for blacks to close the achievement gap with whites. “It’s not genetic, I’m convinced,” he told me this summer. “So what is it? I think it’s largely self-imposed by black people who don’t put as much emphasis on academic achievement as they once did and as other groups do now.” Connerly will tell you that he ended up going to college (at Sacramento State) because his grandmother pushed him to read books all the time.
Many people reject his argument as simplistic, if not worse. But whatever you think of his solution, it’s hard not to find some truth in his critique of traditional affirmative action. Certainly, voters seem to feel this way. Last year, Michigan passed an initiative identical to Proposition 209, and, thanks to Connerly, several other states are likely to vote on such proposals next year. Soon, more universities may find themselves in the same situation as the University of California.
There is almost an iron law of higher education: the more selective a school is, the fewer low-income students it has. At Harvard and Yale, only about 10 percent of undergraduates receive federal Pell Grants. (Typically, students from the bottom 40 percent of the income distribution are eligible for the Pell.) Even at top public universities, the share is often 15 percent or less. The colleges that are filled with poor and middle-class students almost invariably have low graduation rates. So their graduates are more likely to end up on the wrong side of the 21st century’s educational divide. A bachelor’s degree seems out of reach to a large portion of the American population, and, as a result, other countries have closed the gap in educational attainment with the United States over the last generation.
There are really only two exceptions to the rule, two universities that are both elite and economically diverse: U.C.L.A. and Berkeley. A chart on U.S. News & World Report’s Web site does a nice job of summarizing just how unusual they are. It lists the percentage of Pell Grant recipients at each university in the magazine’s famous Top 25 ranking. U.C.L.A. tops the list, at 37 percent, and Berkeley comes next, at 31 percent. In third place is Columbia, with just 15 percent.
To be fair, the main explanation for this gap is demographic happenstance. California is filled with low-income immigrant families, especially from Asia and Latin America, with high-achieving children. But a set of deliberate policies also plays an important role. The University of California accepts far more transfer students, mainly from community colleges, than most colleges. At U.C.L.A., about one-third of the admitted students arrive as transfers instead of as freshmen. When I was on campus, I met a 27-year-old Mexican immigrant named Daniel Flores, who was admitted three years ago as a junior even though, as Flores told me, “I barely graduated high school.” His first job after high school was in one of U.C.L.A.’s dining halls, where he realized that he would need more education if he ever wanted to make much more than minimum wage. He then enrolled in a community college in West Los Angeles and excelled there. When he was 18 years old — the only point in life when elite colleges usually consider candidates — no sane admissions officer would have let him in. By the time he was 23, it was clear he had mainly just lacked for good opportunities. Earlier this year, he graduated from U.C.L.A.; and there are hundreds of other students with life stories not so different from Flores’s who are walking through the Italianate buildings on the university’s lush campus.
If anything, Proposition 209 may have helped keep the U.C. campuses as economically diverse as they are. Desperate to maintain some racial diversity, university officials set up outreach programs in lower-income school districts, as James Traub described in this magazine several years ago. One of them, run by U.C. Davis, which is outside of Sacramento, visited Frances Harris’s elementary school. It was around this time that Harris first told her parents that she planned to go to college. Over the years, when things got tough, they both made a point of reminding her of her vow. “At times I got discouraged, and they said, ‘You’ve said you’re going to go to college, and you’re going to go,’ ” she recalled. A framed “reservation for college” certificate from the Davis program still hangs in her bedroom.
After the initiative passed, the U.C. campuses also put more weight on students’ socioeconomic backgrounds when they made admissions decisions. Richard Sander, a U.C.L.A. law professor who has become a critic of affirmative action, studied admissions data at Berkeley and found that, all else being equal, lower-income students had a better chance of getting in after 1997 than before. Together, these various class-based efforts have helped the share of Pell Grant students at both U.C.L.A. and Berkeley to hold steady over the last decade, even as it has declined at many similar colleges.
You can make an argument, in fact, that the single most impressive university in the country today is U.C.L.A. It receives more freshman applications than any other — 50,744 this year — and, unlike many of its peers, it can legitimately claim to be an engine of opportunity. About 90 percent of its students, whether they enter as freshmen or transfers, eventually graduate. What City College of New York was to the 20th century, U.C.L.A. is to the 21st.
And now, maybe, it is figuring out ways to solve its race problem.
One night in march of this year, Peter Taylor and three other U.C.L.A. alumni met in his office to go over a big stack of U.C.L.A. applications from students who had already been admitted. Over sandwiches, the four of them — none of whom was a university employee — helped determine how much financial aid each student would get. This was one of the “bureaucratic cover-me exercises,” as Taylor puts it, at the heart of the new diversity push at U.C.L.A.
In the previous few months, Taylor and his group had raised $1.7 million for scholarships, the plan being to offer virtually all of it, immediately, to admitted black students. The easiest thing to do would have been to hand over the money to the U.C.L.A. Foundation, which holds and invests the university’s endowment, and then allow financial-aid officers to give it away as they saw fit. But U.C.L.A.’s general counsel said that allowing the foundation to handle funds specifically set aside for black students might violate the law. And letting the financial-aid office disburse the money almost certainly would have done so, since Proposition 209 prohibited colleges from recruiting students and offering scholarships based on race. But it didn’t prevent student and alumni groups from doing so. In effect, Taylor and his task force began outsourcing work that normally would have been done by the university.
Students and alumni stepped up their recruiting efforts. They visited high schools and set up a phone bank, with the help of a sympathetic alumnus who owned a call center, to reach out to black high-school seniors. Southwest Airlines donated plane tickets, helping black students who had been admitted to visit the campus. (A survey in 2005 had shown that admitted students were far more likely to choose U.C.L.A. if they had visited it. If you’ve been to the campus, this won’t surprise you.) One program that greeted prospective black students, called Black by Popular Demand, was run by the African Student Union and the Black Alumni Association. Another program — Scholars Days — was aimed broadly at less-than-privileged students, and it was run by the university. The two were scheduled to overlap.
This outsourcing was the second part of the task force’s two-pronged strategy. The group also urged U.C.L.A.’s faculty senate last year to alter the admissions process. In the past, the admissions office divided every application between two readers: one evaluated a student’s academic record, the other looked at extracurricular activities and “life challenges.” Berkeley, by contrast, had taken a more holistic approach, with a single reader judging an entire application, and Berkeley was attracting more black students than U.C.L.A. Why? Maybe the holistic approach takes better account of the subtle obstacles that black students face — or maybe the readers, when looking at a full application, ended up practicing a little under-the-table affirmative action.
Last fall, U.C.L.A. made the switch. Two applications readers I interviewed said that they had received clear, written instructions not to consider race and that they hadn’t. (There are 150 readers in all, a mix of university employees and paid outsiders.) On the other hand, applicants seemed to understand that something had changed. Daniel Fogg, a computer programmer in the admissions office and an application reader, told me that he noticed more students mentioning race in their essays this year.
Whatever the reasons, every phase of Taylor’s campaign turned out to be a success. More than 2,400 black students applied last spring, up 13 percent from the previous year. Their admission rate rose to 16.2 percent, from 11.5 percent. Of those who were admitted, slightly more than half said yes, up from 41 percent in 2006. In all, about 200 African-American freshmen started classes last week, double the number the year before.
One of them was Frances Harris. Back at her high school in Sacramento this spring, a group of seniors decided to celebrate their school’s turnaround by photocopying their college acceptance letters and taping them to the walls. An entire hallway was filled with hundreds of letters. Until I stood in the hallway with Harris, I wasn’t sure it was possible to find any part of today’s college-application process inspiring. Eleven of the letters were hers, including ones from Pitzer College, Boston University, U.C.L.A. and U.C. Davis. (Berkeley rejected her.) She liked B.U., but it seemed too far away, especially from her mother’s perspective. So Harris’s decision came down to Pitzer, which offered her nearly a full scholarship, and U.C.L.A. In the end, a $1,000 scholarship from Taylor’s group, a campus visit (flight courtesy of Southwest) and a phone call from U.C.L.A.’s director of financial aid — a combination of official recruiting and outsourced recruiting — pulled her toward U.C.L.A. “The biggest thing was seeing so many beautiful, intellectual black young students, being cool and having discussions about calculus,” she said. “It was so pure. I was so impressed. It was amazing.”
Harris’s parents and her biological father all attended her high-school graduation. In late July, her parents drove her to Los Angeles so she could attend a six-week voluntary summer school that is officially open to incoming freshmen of all races but is dominated by black and Latino students. I saw Harris on campus in August, and she told me that she missed her friends from home but was happy to be a college student. On her first paper, in English composition, she got a B-plus, and on her second she got an A-minus. She’s thinking about becoming a pre-med student. Next summer, she plans to go to Washington to work as an intern with the new chancellor of the school system there, Michelle Rhee, whom Harris met through her high school.
A few weeks after getting to U.C.L.A., Harris wrote an e-mail message to P. K. Diffenbaugh, one of her old teachers, telling him to send some of his current students to visit her soon, so they could get excited about college. “In my comparative English class we read a book a week. It goes superfast so encourage your students not to fall off,” she wrote. “It’s like the major leagues. . . . Academia!!!!”
The big question that hangs over U.C.L.A.’s success, of course, is whether the university broke the law. Looking at the numbers, it’s hard not to conclude that race was a factor in this year’s admissions decisions. The average SAT score for admitted African-American students fell 45 points this year, to 1,738. For Asian, Latino and white students, the averages were much more stable. “I’m quite confident that U.C. factors race in, in various ways,” said Sander, the U.C.L.A. law professor and affirmative-action critic. “There is no way to explain the disparities otherwise.” He has filed a public-information request that would allow him to examine the data more closely.
In particular, U.C.L.A.’s experience suggests that some tension between race and class in the admissions process may be inevitable. Even as the number of low-income black freshmen soared this year, the overall number of low-income freshmen fell somewhat. The rise in low-income black students was accompanied by a fall in low-income Asian students — not a decline in well-off students. U.C.L.A. administrators say they don’t fully understand why.
In a way, though, the question of whether race was a factor is itself misplaced. Proposition 209 forbids universities to consider race, but it doesn’t stop them from considering disadvantage. So what if U.C.L.A. is somehow taking into account the disadvantages that black students face because of their race? Isn’t that legal? And isn’t it just? As Tom Lifka, a U.C.L.A. assistant vice chancellor who oversees admissions, said, “It’s the fallacy of 209 that you can immediately move to a system that doesn’t take account of race and that treats everybody fairly.” Lifka said he was confident that U.C.L.A.’s current system could withstand legal scrutiny.
I asked these same questions about race and fairness of Connerly, who does favor preferences based on socioeconomic status (as do almost 85 percent of Americans, according to a 2005 New York Times poll). His first objection was constitutional: he believes the Supreme Court has given colleges very narrow instructions on when and how to consider race. Beyond that, he finds it hard to imagine that colleges would be able to strike the appropriate balance. “I suppose you could craft some kind of system that says, ‘We’re going to acknowledge that there has been and continues to be discrimination in our society,’ ” he said. “But I believe it is almost impossible to decide on the acceptable range — say, from 1 to 10 — to take race into account.”
He may well be right. But it sure seems worth the effort. Somewhat accidentally, U.C.L.A. appears to have gotten much closer to the ideal answer than most American universities. Unlike those of other elite colleges, its student body isn’t dominated merely by the best and brightest of the upper middle class. U.C.L.A. has also figured out how to do a bit better by the standard diversity benchmarks than it had been doing. Despite all the political heat that still surrounds the issue in California, its universities seem to be pointing to a better version of affirmative action — one that uses a little less race and a lot more class. “What would be nice is if we could craft a social compromise that could keep the best of the program while admitting some of its flaws,” says Sander, who supports the idea of affirmative action, despite his criticisms of the current system. “It’s way beyond, ‘Mend it, don’t end it.’ Let’s fundamentally restructure this and be much more aware of class. If we did that, we’d build a much bigger consensus and take a lot of wind out of the sails of Ward Connerly.” Such a consensus might show us, finally, how to put the accomplishments of a student like Frances Harris into the right perspective.
David Leonhardt is an economics columnist for The New York Times.
Wednesday, September 26
Politics in Black and White
The New York Times
September 24, 2007
Op-Ed Columnist
Politics in Black and White
By PAUL KRUGMAN
Last Thursday there was a huge march in Jena, La., to protest the harsh and unequal treatment of six black students arrested in the beating of a white classmate. Students who hung nooses to warn blacks not to sit under a “white” tree were suspended for three days; on the other hand, the students accused in the beating were initially charged with second-degree attempted murder.
And one of the Jena Six remains in jail, even though appeals courts have voided his conviction on the grounds that he was improperly tried as an adult.
Many press accounts of the march have a tone of amazement. Scenes like those in Jena, the stories seemed to imply, belonged in the 1960s, not the 21st century. The headline on the New York Times report, “Protest in Louisiana Case Echoes the Civil Rights Era,” was fairly typical.
But the reality is that things haven’t changed nearly as much as people think. Racial tension, especially in the South, has never gone away, and has never stopped being important. And race remains one of the defining factors in modern American politics.
Consider voting in last year’s Congressional elections. Republicans, as President Bush conceded, received a “thumping,” with almost every major demographic group turning against them. The one big exception was Southern whites, 62 percent of whom voted Republican in House races.
And yes, Southern white exceptionalism is about race, much more than it is about moral values, religion, support for the military or other explanations sometimes offered. There’s a large statistical literature on the subject, whose conclusion is summed up by the political scientist Thomas F. Schaller in his book “Whistling Past Dixie”: “Despite the best efforts of Republican spinmeisters to depict American conservatism as a nonracial phenomenon, the partisan impact of racial attitudes in the South is stronger today than in the past.”
Republican politicians, who understand quite well that the G.O.P.’s national success since the 1970s owes everything to the partisan switch of Southern whites, have tacitly acknowledged this reality. Since the days of Gerald Ford, just about every Republican presidential campaign has included some symbolic gesture of approval for good old-fashioned racism.
Thus Ronald Reagan, who began his political career by campaigning against California’s Fair Housing Act, started his 1980 campaign with a speech supporting states’ rights delivered just outside Philadelphia, Miss., where three civil rights workers were murdered. In 2000, Mr. Bush made a pilgrimage to Bob Jones University, famed at the time for its ban on interracial dating.
And all four leading Republican candidates for the 2008 nomination have turned down an invitation to a debate on minority issues scheduled to air on PBS this week.
Yet if the marchers at Jena reminded us that America still hasn’t fully purged itself of the poisonous legacy of slavery, it would be wrong to suggest that the nation has made no progress. Racism, though not gone, is greatly diminished: both opinion polls and daily experience suggest that we are truly becoming a more tolerant, open society.
And the cynicism of the “Southern strategy” introduced by Richard Nixon, which delivered decades of political victories to Republicans, is now starting to look like a trap for the G.O.P.
One of the truly remarkable things about the contest for the Republican nomination is the way the contenders have snubbed not just blacks — who, given the G.O.P.’s modern history, probably won’t vote for a Republican in significant numbers no matter what — but Hispanics. In July, all the major contenders refused invitations to address the National Council of La Raza, which Mr. Bush addressed in 2000. Univision, the Spanish-language TV network, had to cancel a debate scheduled for Sept. 16 because only John McCain was willing to come.
If this sounds like a good way to ensure defeat in future elections, that’s because it is: Hispanics are a rapidly growing force in the electorate.
But to get the Republican nomination, a candidate must appeal to the base — and the base consists, in large part, of Southern whites who carry over to immigrants the same racial attitudes that brought them into the Republican fold to begin with. As a result, you have the spectacle of Rudy Giuliani and Mitt Romney, pragmatists on immigration issues when they actually had to govern in diverse states, trying to reinvent themselves as defenders of Fortress America.
And both Hispanics and Asians, another growing force in the electorate, are getting the message. Last year they voted overwhelmingly Democratic, by 69 percent and 62 percent respectively.
In other words, it looks as if the Republican Party is about to start paying a price for its history of exploiting racial antagonism. If that happens, it will be deeply ironic. But it will also be poetic justice
September 24, 2007
Op-Ed Columnist
Politics in Black and White
By PAUL KRUGMAN
Last Thursday there was a huge march in Jena, La., to protest the harsh and unequal treatment of six black students arrested in the beating of a white classmate. Students who hung nooses to warn blacks not to sit under a “white” tree were suspended for three days; on the other hand, the students accused in the beating were initially charged with second-degree attempted murder.
And one of the Jena Six remains in jail, even though appeals courts have voided his conviction on the grounds that he was improperly tried as an adult.
Many press accounts of the march have a tone of amazement. Scenes like those in Jena, the stories seemed to imply, belonged in the 1960s, not the 21st century. The headline on the New York Times report, “Protest in Louisiana Case Echoes the Civil Rights Era,” was fairly typical.
But the reality is that things haven’t changed nearly as much as people think. Racial tension, especially in the South, has never gone away, and has never stopped being important. And race remains one of the defining factors in modern American politics.
Consider voting in last year’s Congressional elections. Republicans, as President Bush conceded, received a “thumping,” with almost every major demographic group turning against them. The one big exception was Southern whites, 62 percent of whom voted Republican in House races.
And yes, Southern white exceptionalism is about race, much more than it is about moral values, religion, support for the military or other explanations sometimes offered. There’s a large statistical literature on the subject, whose conclusion is summed up by the political scientist Thomas F. Schaller in his book “Whistling Past Dixie”: “Despite the best efforts of Republican spinmeisters to depict American conservatism as a nonracial phenomenon, the partisan impact of racial attitudes in the South is stronger today than in the past.”
Republican politicians, who understand quite well that the G.O.P.’s national success since the 1970s owes everything to the partisan switch of Southern whites, have tacitly acknowledged this reality. Since the days of Gerald Ford, just about every Republican presidential campaign has included some symbolic gesture of approval for good old-fashioned racism.
Thus Ronald Reagan, who began his political career by campaigning against California’s Fair Housing Act, started his 1980 campaign with a speech supporting states’ rights delivered just outside Philadelphia, Miss., where three civil rights workers were murdered. In 2000, Mr. Bush made a pilgrimage to Bob Jones University, famed at the time for its ban on interracial dating.
And all four leading Republican candidates for the 2008 nomination have turned down an invitation to a debate on minority issues scheduled to air on PBS this week.
Yet if the marchers at Jena reminded us that America still hasn’t fully purged itself of the poisonous legacy of slavery, it would be wrong to suggest that the nation has made no progress. Racism, though not gone, is greatly diminished: both opinion polls and daily experience suggest that we are truly becoming a more tolerant, open society.
And the cynicism of the “Southern strategy” introduced by Richard Nixon, which delivered decades of political victories to Republicans, is now starting to look like a trap for the G.O.P.
One of the truly remarkable things about the contest for the Republican nomination is the way the contenders have snubbed not just blacks — who, given the G.O.P.’s modern history, probably won’t vote for a Republican in significant numbers no matter what — but Hispanics. In July, all the major contenders refused invitations to address the National Council of La Raza, which Mr. Bush addressed in 2000. Univision, the Spanish-language TV network, had to cancel a debate scheduled for Sept. 16 because only John McCain was willing to come.
If this sounds like a good way to ensure defeat in future elections, that’s because it is: Hispanics are a rapidly growing force in the electorate.
But to get the Republican nomination, a candidate must appeal to the base — and the base consists, in large part, of Southern whites who carry over to immigrants the same racial attitudes that brought them into the Republican fold to begin with. As a result, you have the spectacle of Rudy Giuliani and Mitt Romney, pragmatists on immigration issues when they actually had to govern in diverse states, trying to reinvent themselves as defenders of Fortress America.
And both Hispanics and Asians, another growing force in the electorate, are getting the message. Last year they voted overwhelmingly Democratic, by 69 percent and 62 percent respectively.
In other words, it looks as if the Republican Party is about to start paying a price for its history of exploiting racial antagonism. If that happens, it will be deeply ironic. But it will also be poetic justice
Tuesday, September 25
The New College Try
By JEROME KARABEL
New York Times Opinion
Berkeley, Calif.
AMERICANS are committed to the belief that everyone, no matter how humble his origins, has a chance to rise to the top. Our leading colleges and universities play a pivotal role in this national narrative, for they are considered major pathways to power and privilege.
Today, the competition to get into these institutions is at an all-time high, and this has led to serious problems across the socioeconomic spectrum — gnawing and pervasive anxiety among the affluent, underrepresentation among the middle classes and an almost total lack of access among the poor. Changing the situation will take drastic action. Despite their image as meritocratic beacons of opportunity, the selective colleges serve less as vehicles of upward mobility than as transmitters of privilege from generation to generation.
Just how skewed the system is toward the already advantaged is illustrated by the findings of a recent study of 146 selective colleges and universities, which concluded that students from the top quartile of the socioeconomic hierarchy (based on parental income, education and occupation) are 25 times more likely to attend a “top tier” college than students from the bottom quartile.
Yet at least since the 1970s, selective colleges have repeatedly claimed — most recently in amicus briefs submitted to the Supreme Court in the landmark affirmative case concerning the University of Michigan — to give an edge in admissions to disadvantaged students, regardless of race. So it came as a rude shock a few years ago when William Bowen, the former president of Princeton, and his associates discovered, in a rigorous study of 19 selective colleges, that applicants from disadvantaged backgrounds, whether defined by family income or parental education, “get essentially no break in the admissions process.”
The paucity of students from poor and working-class backgrounds at the nation’s selective colleges should be a national scandal. Yet the problem resides not so much in discrimination in the admissions process (though affirmative action for the privileged persists in preferences for the children of alumni and big donors) as in the definition of merit used by the elite colleges. For by the conventional definition, which relies heavily on scores on the SAT, the privileged are the meritorious; of all students nationwide who score more than 1300 on the SAT, two-thirds come from the top socioeconomic quartile and just 3 percent from the bottom quartile.
Only a vigorous policy of class-based affirmative action that accounts for the huge class differences in educational opportunity has a chance of altering this pattern. This change should be accompanied by a fundamental re-examination of the very meaning of “merit.”
Is resilience in the face of deprivation a form of achievement? Should universities expect — and even demand — higher levels of achievement from applicants who have enjoyed every social and educational advantage? Does the emphasis on outstanding extracurricular accomplishments privilege already privileged students who have the time, the resources and the opportunities to display such accomplishments?
On the other side of the socioeconomic divide, anxious parents in wealthy cities and suburbs are now hiring expensive consultants to give their toddlers an edge in the competition to get into the “right” preschool, proving that the college admissions frenzy has reached a point where radical ideas are in order for the privileged, too.
One of my favorites is the idea of a lottery. This could take the form of reserving a modest number of places in the freshman class — say 5 percent to 10 percent — for applicants who, having met a high academic threshold, would be selected at random. While the admissions office would know the identities of the students admitted by lottery, no one else — not faculty, not employers and not the students themselves — would.
Such a lottery would permit the college to determine whether its traditional selection criteria did any better than chance in predicting success in school and in later life; my own guess is that lottery admits would be amply — perhaps equally — represented among the institution’s most distinguished graduates.
Last, and not least, by undermining the dubious assumption that the applicants admitted are those with the most merit, a lottery might promote a certain measure of humility — a quality in short supply in the upper rungs of the “meritocracy” — among admission officers and students alike.
Jerome Karabel, a professor of sociology at the University of California, Berkeley, is the author of “The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale and Princeton.”
New York Times Opinion
Berkeley, Calif.
AMERICANS are committed to the belief that everyone, no matter how humble his origins, has a chance to rise to the top. Our leading colleges and universities play a pivotal role in this national narrative, for they are considered major pathways to power and privilege.
Today, the competition to get into these institutions is at an all-time high, and this has led to serious problems across the socioeconomic spectrum — gnawing and pervasive anxiety among the affluent, underrepresentation among the middle classes and an almost total lack of access among the poor. Changing the situation will take drastic action. Despite their image as meritocratic beacons of opportunity, the selective colleges serve less as vehicles of upward mobility than as transmitters of privilege from generation to generation.
Just how skewed the system is toward the already advantaged is illustrated by the findings of a recent study of 146 selective colleges and universities, which concluded that students from the top quartile of the socioeconomic hierarchy (based on parental income, education and occupation) are 25 times more likely to attend a “top tier” college than students from the bottom quartile.
Yet at least since the 1970s, selective colleges have repeatedly claimed — most recently in amicus briefs submitted to the Supreme Court in the landmark affirmative case concerning the University of Michigan — to give an edge in admissions to disadvantaged students, regardless of race. So it came as a rude shock a few years ago when William Bowen, the former president of Princeton, and his associates discovered, in a rigorous study of 19 selective colleges, that applicants from disadvantaged backgrounds, whether defined by family income or parental education, “get essentially no break in the admissions process.”
The paucity of students from poor and working-class backgrounds at the nation’s selective colleges should be a national scandal. Yet the problem resides not so much in discrimination in the admissions process (though affirmative action for the privileged persists in preferences for the children of alumni and big donors) as in the definition of merit used by the elite colleges. For by the conventional definition, which relies heavily on scores on the SAT, the privileged are the meritorious; of all students nationwide who score more than 1300 on the SAT, two-thirds come from the top socioeconomic quartile and just 3 percent from the bottom quartile.
Only a vigorous policy of class-based affirmative action that accounts for the huge class differences in educational opportunity has a chance of altering this pattern. This change should be accompanied by a fundamental re-examination of the very meaning of “merit.”
Is resilience in the face of deprivation a form of achievement? Should universities expect — and even demand — higher levels of achievement from applicants who have enjoyed every social and educational advantage? Does the emphasis on outstanding extracurricular accomplishments privilege already privileged students who have the time, the resources and the opportunities to display such accomplishments?
On the other side of the socioeconomic divide, anxious parents in wealthy cities and suburbs are now hiring expensive consultants to give their toddlers an edge in the competition to get into the “right” preschool, proving that the college admissions frenzy has reached a point where radical ideas are in order for the privileged, too.
One of my favorites is the idea of a lottery. This could take the form of reserving a modest number of places in the freshman class — say 5 percent to 10 percent — for applicants who, having met a high academic threshold, would be selected at random. While the admissions office would know the identities of the students admitted by lottery, no one else — not faculty, not employers and not the students themselves — would.
Such a lottery would permit the college to determine whether its traditional selection criteria did any better than chance in predicting success in school and in later life; my own guess is that lottery admits would be amply — perhaps equally — represented among the institution’s most distinguished graduates.
Last, and not least, by undermining the dubious assumption that the applicants admitted are those with the most merit, a lottery might promote a certain measure of humility — a quality in short supply in the upper rungs of the “meritocracy” — among admission officers and students alike.
Jerome Karabel, a professor of sociology at the University of California, Berkeley, is the author of “The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale and Princeton.”
Sunday, September 23
‘Thelma and Louise’ in the Rear-View Mirror
I watched “Thelma and Louise” again this week.
Boy, how times have changed.
Remember, in 1991, how topical the movie seemed? How revolutionary, how thrilling, how cathartic?
It didn’t seem any of those things to me the other night, when I attended a screening of the film guest-hosted by Senator Susan Collins and Representative Jane Harman.
It simply seemed depressing, oppressive and hopeless. It seemed like a relic from the past, a buried memory. It was dark. It was disturbing. It was — it dawned on me, driving home and still sniveling over the sight of that blue Thunderbird plummeting into the void — a movie that could not be made today.
Thank goodness.
The “Thelma and Louise” screening was one of a series of events organized by The Week magazine, which periodically invites politicians to choose and introduce their favorite Washington-themed movies. Previous choices, by male lawmakers, have included “The Candidate,” “Dr. Strangelove” and “Dave.” But Collins and Harman, the cheery Maine Republican and tough-as-nails California Democrat, who have worked together on intelligence and homeland security legislation, broke the mold with their choice of the dystopic female buddy movie.
They wanted, they said, to showcase their against-the-odds, across-the-aisle friendship. Yet they weren’t, they warned those in attendance, planning on driving off any cliffs. They made clear that the Susan and Jane show isn’t a continuation of Thelma and Louise’s struggles. Rather, Collins said, it’s the “sequel.”
I found that a nice thought. But after watching the movie I realized that it isn’t really true.
It would be true if “Thelma and Louise” were really, as it has always been considered (except by its makers), a timeless meditation upon sexual politics and women’s general position in American society.
But it isn’t; “Thelma and Louise” is primarily a movie about sexual violence. It’s about all the myriad forms that sexual violence can take – from the psychic violence done to Thelma, who at 18 married her boyfriend of four long years, to the shattering physical violence of Louise’s long-buried rape, to the verbal and gestural violence done to both women by the endless stream of drive-by harassers who pollute their road trip. It’s about the long-term effects of such psychic and physical violence: the childlike Thelma, blindly drawn to men who victimize her again and again, the raging Louise, shut down on the surface but harboring a burning, ultimately self-immolating, rage.
It seems clear to me now that Thelma and Louise’s final act of hara-kiri was not meant to be symbolic of the alleged dead end reached by feminism in the early 1990s. Instead, their act of mutually assured self-destruction was just the end of the line for two abuse victims unwilling to be victimized further by an abusive system.
Yet in 1991 it was altogether understandable that a movie about sexual violence would be turned into a fable about women’s general social and political progress. It made perfect sense then to conflate sexual violence – in all its verbal, psychic, physical and political forms — with sexual politics. That year, the William Kennedy Smith rape case went to trial, belittling and publicly humiliating the victim; Anita Hill confronted Clarence Thomas and emerged besmirched while he reigned victorious; and Roe v. Wade seemed destined for extinction.
All the talk, nationally, was of sexual harassment, date rape and crimes against women generally. Violence against women spiked. “Fear,” wrote Ellen Goodman, had become most women’s “most deeply felt constriction on daily life,” and that fear, in the heart of a generation raised upon hope and a sense of entitlement, brought fury and outraged disbelief. “Now, women who have won equal access to the colleges of their choice are more resentful at the idea that they have to be wary at the fraternity door. Women who live comfortably in coed dorms are more outraged at those men who can’t be trusted. Women who work on the same terms with men are less accepting of inequity on the streets,” she wrote in The Boston Globe in the summer of 1991. “Will this go down in the records as the year that the greenhouse effect of violence is finally recognized?”
The memory of that fear and anger and outrage – the sense of its momentous, transformative power – might have lasted longer had the “Thelma and Louise” moment not been followed, soon after, by a repudiation of “victim feminism” that was widespread and totalizing and highly welcome in the larger culture. It’s easy to forget now how vital and urgent the new focus on date rape and sexual harassment seemed, for a brief moment, back then. And yet it was, truly, transformative; the world of “Thelma and Louise,” I think it’s fair now to say, is not the one that we inhabit psychologically or physically today.
Date rape is no longer a contentious concept; it’s a known reality. Rape victims are no longer so thoughtlessly named and shamed by the media as was William Kennedy Smith’s accuser. Rape itself is down – its incidence having dropped 75 percent since the early 1990s, according to the Department of Justice.
These are profound and meaningful changes, and we should celebrate them — and revel in “Thelma and Louise”’s passage into history.
Saturday, September 22
Justice Stephens - Moderate Conservative Amongst Radicals
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The Dissenter
The last Supreme Court term, which ended in June, was the stormiest in recent memory, with more 5-to-4 decisions split along ideological lines than at any time in the court’s history. In a series of controversial cases about abortion, racial integration in schools, faith-based programs and the death penalty, the court’s four more conservative justices prevailed, with Justice
Not long after beginning his tenure as chief justice in 2005, John G. Roberts Jr. announced publicly that he would try to promote unanimity and collegiality on the court. During his first months on the job, the court managed to achieve his goal, issuing a series of 9-to-0 opinions. But this past term, the court’s first full one with Justice Samuel A. Alito Jr., the brief period of harmony abruptly ended: the percentage of 5-to-4 decisions in which the four liberals were together in dissent rose to 80 percent, up from 55 percent in the 2004 term. For the foreseeable future, the court seems likely to be polarized, with the conservative bloc ascendant and the liberal bloc embattled.
Justice Stevens, the oldest and arguably most liberal justice, now finds himself the leader of the opposition. Vigorous and sharp at 87, he has served on the court for 32 years, approaching the record set by his predecessor, William O. Douglas, who served for 36. In criminal-law and death-penalty cases, Stevens has voted against the government and in favor of the individual more frequently than any other sitting justice. He files more dissents and separate opinions than any of his colleagues. He is the court’s most outspoken defender of the need for judicial oversight of executive power. And in recent years, he has written majority opinions in two of the most important cases ruling against the Bush administration’s treatment of suspected enemy combatants in the war on terror — an issue the court will revisit this term, which begins Oct. 1, when it hears appeals by Guantánamo detainees challenging their lack of access to federal courts.
Stevens, however, is an improbable liberal icon. “I don’t think of myself as a liberal at all,” he told me during a recent interview in his chambers, laughing and shaking his head. “I think as part of my general politics, I’m pretty darn conservative.” Stevens said that his views haven’t changed since 1975, when as a moderate Republican he was appointed by President Gerald Ford to the Supreme Court. Stevens’s judicial hero is Potter Stewart, the Republican centrist, whom Stevens has said he admires more than all of the other justices with whom he has served. He considers himself a “judicial conservative,” he said, and only appears liberal today because he has been surrounded by increasingly conservative colleagues. “Including myself,” he said, “every judge who’s been appointed to the court since Lewis Powell” — nominated by
As a result, Stevens is now in the unexpected position of shaping the court’s liberal jurisprudence. With the retirement of Justice Harry A. Blackmun in 1994, Stevens became the senior associate justice, a position second in authority only to the chief justice. When the chief justice is in the majority and Stevens is in the minority, Stevens decides who will write the principal dissent; when the roles are reversed, Stevens assigns the majority opinion. On the current court, in close cases, Stevens has wielded this power strategically, assiduously courting Kennedy to maximize the chances of winning five votes. In some instances, Stevens has assigned majority opinions to Kennedy to secure his vote; in others he has chosen to write majority opinions himself in ways that will persuade Kennedy to stay in the liberal camp.
If Stevens is shrewd in the majority, he is fierce in dissent. He was especially exercised last term by a case involving death-penalty jurors, which he described to me as “a tremendous change in the law” and which prompted him to criticize his conservative colleagues with extemporaneous comments from the bench. He also assigned several dissents last term to his usually mild-mannered liberal colleagues —
It may seem surprising that such a passionate leader of the court’s liberal wing bristles when he is called a liberal. But the fact that Stevens sees himself as a conservatively oriented centrist makes perfect sense given what judicial liberalism has become. There was a time, years ago in the Warren Court era, when liberal justices like Stevens’s predecessor William O. Douglas saw themselves as on a mission to recreate American society along boldly egalitarian lines by discovering newly minted constitutional rights. But for better or worse, this ambitious conception of judicial liberalism has been replaced, like much of political liberalism in America, by a more modest, conciliatory and technocratic sensibility. Even the most liberal justices today have little appetite for the old approach.
Judicial liberalism, in other words, has largely become a conservative project: an effort to preserve the legal status quo in the face of efforts by a younger generation of conservatives to uproot the precedents of the past 40 years. Stevens, who wrote or supported many of those precedents, understandably objects when he feels they are distorted or mischaracterized by justices who were in college when he was appointed to the court. At the same time, merely conserving the achievements of the past is less than what many liberals today ultimately hope for. Can Stevens provide a model for a new vision of legal liberalism in the 21st century?
On June 22, a week before the last term ended, I visited the Supreme Court for a conversation with Stevens. After greeting me cordially in his chambers, wearing a short-sleeved sport shirt and slacks, he motioned me toward a couch and relaxed in a nearby chair. He had a longstanding policy, he said, of not granting extended interviews; but he indicated he was now ready to talk publicly about his life and legacy, as well as the newly divided court.
I asked about the new chief justice, and Stevens compared him with his predecessor, William H. Rehnquist. He praised Roberts as “obviously very, very smart, a very, very nice guy; he’s got a wonderful sense of humor.” He continued, “He does a fine job of running the conference, as Bill Rehnquist did, although I’m not sure I’m going to agree with him any more than I agreed with Bill Rehnquist.” I asked whether Roberts would succeed in his stated goal of persuading his colleagues to issue narrow, unanimous opinions. “I don’t think so,” Stevens replied. “I just think it takes nine people to do that.” He noted that Roberts had “a bit of a honeymoon period” during his first term. “I think maybe the first few months we all leaned over backward to try to avoid writing separately in a couple of opinions,” he said, “but I don’t think that will last.”
In general, Stevens said, the idea that a justice can sway his colleagues through collegiality and personal lobbying — a talent often attributed to Justice William J. Brennan Jr. — is exaggerated. He suggested that in most cases, justices cannot be swayed to change their votes once they make up their minds, and when they can be swayed, it is only as a result of legal arguments, not charm or charisma. “I was very fond of Bill Brennan — loved the guy and had great admiration for him,” Stevens said. “But it’s simply not right to say that he was able to craft the majority. He just had five votes on his side!”
Stevens himself, however, has been notably successful in building majorities by courting his fellow justices — in particular, Kennedy. His methods of persuasion are intellectual rather than personal, and they are closely tied to the court’s procedure for deciding cases. After the justices hear the oral arguments, they meet in a private conference to deliberate. After the chief justice speaks, each of the remaining justices speaks in order of seniority, so that Stevens speaks second. Then the justices vote, and the majority opinion is assigned. The majority opinion later circulates among the justices, and on rare occasions a justice may then change his or her vote, and a majority can become a dissent. But “you very rarely win votes if there aren’t five votes persuaded after our conference,” Stevens stressed. “Very rare.”
When he is in the majority, Stevens is careful not to lose votes that start off on his side, often assigning the opinion to Kennedy when Kennedy seems to be on the fence. “Sometimes,” he told me, “in all candor, if you think somebody might not be solid” after casting a vote in conference, “it might be wiser to let that person write the opinion,” because after defending a position at length, people “tend to become even more convinced” than when they started. For example, Stevens was effective in winning over Kennedy by asking him to write the majority opinion in Lawrence v. Texas, the 2003 decision striking down sodomy laws, which many liberals consider the Brown v. Board of Education of the gay rights movement. “It worked out O.K.,” Stevens told me, with typical understatement. “I don’t know if I’m entitled to the credit or Tony’s entitled to the credit, because he wrote an exceptional opinion.” In other cases, Stevens has written the majority opinion himself in an effort to shore up Kennedy’s vote. In April, for example, in a 5-to-4 case, the court allowed a lawsuit to proceed against the Environmental Protection Agency for its refusal to regulate global warming under the Clean Air Act; by citing several of Kennedy’s previous opinions in his own opinion, Stevens persuaded Kennedy to stay in the liberal camp.
On the issue of abortion, however, Stevens has failed to persuade Kennedy to vote consistently with the liberals. I asked Stevens about the decision last term in which Kennedy, writing for the five more conservative justices, upheld the federal ban on partial-birth abortion. Stevens said that the federal ban was deeply flawed and that Kennedy’s rhetoric about the need to protect women from the emotional trauma of abortions was frustrating. But he noted that the real-world effect of the defeat was minimal because of the widespread availability of alternative abortion procedures. “The statute is a silly statute,” he said. “It’s a silly statute.” He added, “It’s just a distressing exhibition by Congress, but what we decided isn’t all that important.”
I asked whether Stevens thought the right to abortion recognized in Roe v. Wade would survive in his lifetime. “Well, it’s up to Justice Kennedy,” he replied. “I don’t know about the two new justices” — Roberts and Alito — “but I kind of assume it may well be up to him.” Abortion rights supporters may take solace in the fact that Stevens indicated that Kennedy seemed to view the regulation of so-called partial-birth abortions as consistent with Planned Parenthood v. Casey, which upheld the central holding of Roe v. Wade. “I don’t think he thinks this” — the recent abortion opinion — “requires him to change his views at all,” Stevens said. “We’ll have to wait and see. I suppose there are a lot of people out there praying I get out of the way.”
Stevens was born on April 20, 1920, the youngest of four boys. His paternal grandfather, James W. Stevens, made a fortune as the founder of the Illinois Life Insurance company, and in 1927, his father, Ernest J. Stevens, built the Stevens Hotel in Chicago, now the Hilton Chicago, which he called “the largest and finest hotel in the world.” Built for a staggering price of $30 million, the Stevens hotel included 3,000 guest rooms, a movie theater and an ice cream factory. As Charles Lane reported in a
At age 7, during the opening banquet of the Stevens hotel, Stevens remembers meeting Amelia Earhart, who asked him, “Aren’t you out late on a school night?” A few months later, Charles Lindbergh stayed at the hotel after returning from his historic flight to Europe and, eager to unload the gifts that were filling his room, gave young Stevens a dove.
Stevens revered his father, a loyal Warren Harding Republican who mistrusted Franklin D. Roosevelt. Despite his political leanings, his father took the 12-year-old Stevens to the 1932 Democratic Convention in Chicago, where Stevens remembers not realizing Roosevelt had polio as he walked to the platform to deliver his acceptance speech. The same year, Stevens, an ardent Chicago Cubs fan, remembers sitting at Wrigley Field and watching Babe Ruth, in the fifth inning of Game 3 of the World Series, gesturing with his bat toward center field and hitting his famous “called shot” home run. (A scorecard from the game hangs in Stevens’s chambers.)
“I had a very happy childhood,” Stevens told me with a faraway look in his eyes. But events took a darker turn in 1934, when the Stevens Hotel went bankrupt in the Great Depression, and Stevens’s father, grandfather and uncle were indicted for diverting money from the Illinois Life Insurance company to make interest payments on bonds for the hotel. Stevens’s uncle committed suicide, and his father was convicted in 1934 of embezzling $1.3 million. “A totally unjust conviction, I can assure you,” Stevens told me with passion. Indeed, later that same year, the Illinois Supreme Court overturned the conviction. “There is not a scintilla of evidence of any concealment or fraud attempted,” the court noted.
I asked Stevens whether seeing his father unjustly convicted influenced his views on the Supreme Court. “I’m sure it did,” he replied. “You can’t forget about that.” Stevens said the experience had taught him a “very important lesson”: namely, “that the criminal justice system can misfire sometimes” because “it seriously misfired in that case.” As a Supreme Court justice, Stevens seems to have kept this lesson firmly in view. In criminal-justice cases from 1995 to 2001, according to numbers compiled by Christopher E. Smith of the School of Criminal Justice at Michigan State University, of all the justices on the court, Stevens took the most expansive view of individual rights, voting against the government 69.7 percent of the time. (The next most liberal justices were Ginsburg at 60 percent, Souter at 57.6 percent and Breyer at 54.9 percent.)
After graduating Phi Beta Kappa from the University of Chicago in 1941, Stevens enlisted in the Navy on Dec. 6, 1941, hours before the Japanese attacked Pearl Harbor. He later won a bronze star for his service as a cryptographer, after he helped break the code that informed American officials that Adm. Isoroku Yamamoto, the commander of the Japanese Navy and architect of the Pearl Harbor attack, was about to travel to the front. Based on the code-breaking of Stevens and others, U.S. pilots, on Roosevelt’s orders, shot down Yamamoto’s plane in April 1943.
Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about the fairness of the death penalty. “I was on the desk, on watch, when I got word that they had shot down Yamamoto in the Solomon Islands, and I remember thinking: This is a particular individual they went out to intercept,” he said. “There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire.” Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately. He has been the most outspoken critic of the death penalty on the current court.
Returning from the war in 1945, Stevens thought of becoming a high-school English teacher, like his mother, but instead was persuaded by his brother to enroll at University of Chicago Law School on the G.I. Bill. Two years later, he graduated first in his class, with the highest grade-point average in the history of the school. Based on the recommendations of his professors, who praised him as “the quickest” and “best balanced mind” they had ever seen, and the “most admired” and “best liked man in school,” he won a clerkship in 1947 with the Supreme Court justice Wiley Rutledge, a liberal New Dealer and former law-school dean appointed by F.D.R.
As a law clerk, Stevens reviewed cases involving liberty and security after World War II. The experience, he told me, shaped his views about the importance of judicial oversight of the president’s aggressive actions in terrorism cases after 9/11. Stevens worked with Rutledge on a dissent from a 1948 opinion upholding the right of the attorney general to deport German nationals considered to be Nazis without any review by federal courts. Rutledge objected to the idea that federal courts couldn’t issue writs of habeas corpus because the Germans were held on Ellis Island rather than falling within the jurisdiction of a federal district court. Stevens cited Rutledge’s dissent when he wrote a landmark majority opinion in the 2004 Rasul case, which allowed foreign nationals held at Guantánamo Bay to challenge their detention in U.S. courts. (A portrait of Rutledge hangs in Stevens’s chambers.)
Stevens was also influenced by Rutledge’s dissenting opinion in the Yamashita case in 1946, in which the court upheld the power of a military commission to try and to execute a Japanese general in the Philippines in violation of the Geneva Conventions. Emphasizing the dangers of denying anyone within American jurisdiction a fair trial, Stevens once again cited Rutledge’s dissent in his own opinion in the Hamdan case in 2006, which struck down President Bush’s military commissions because they were not specifically authorized by Congress. (Congress authorized them later that year.)
But Stevens, like Rutledge, does not always follow the civil-libertarian line: he has a Greatest Generation sense of patriotism, which he expressed in unexpectedly emotional dissents in 1989 and 1990 insisting that Congress and the states should have the power to ban flag burning.
After his Supreme Court clerkship, Stevens turned down an offer to teach at Yale Law School and instead became an antitrust lawyer in Chicago. He joined forces with moderate and liberal good-government Democrats, who were opposed to the corruption of the Daley machine. In 1969, he was appointed to investigate a political scandal on the Illinois Supreme Court, an investigation that made his professional reputation. A citizen activist named Sherman Skolnick accused the chief justice and another Illinois Supreme Court justice of accepting bank stock from a politically connected Chicago lawyer in exchange for deciding a case in his favor. The Illinois Supreme Court set up a special commission to investigate the allegations, and Stevens was appointed general counsel. After a six-week investigation, culminating in Stevens’s dramatic courtroom examination of the accused justices, the commission concluded that both men had, in fact, violated canons of judicial ethics, and both resigned.
Stevens told me that the experience of investigating the scandal of 1969 profoundly influenced the way he has approached his job as an appellate judge and Supreme Court justice. In the course of his investigation, Stevens discovered that a third Illinois Supreme Court justice, who was not under suspicion for bribery, had originally written a dissent from the disputed decision that he decided not to publish, in the interest of maintaining collegiality. “My immediate and strong reaction was that the public should have been informed” of the dissent, Stevens has written.
For that reason, Stevens went on to suggest, ever since he joined the Supreme Court, he has written more dissenting and separate concurring opinions than any of his colleagues. And his experience with the Commission of 1969 has made him even more skeptical of Chief Justice Roberts’s idea that unanimity is in itself a desirable goal. Ever since the early 19th century, there has been a vigorous debate about whether the Supreme Court and other appellate courts are best served by consensus or transparency — by unanimous opinions written by the chief justice, which was John Marshall’s view, or by separate opinions in which individual justices make their disagreements clear, which was the view of Marshall’s distant cousin and archrival, Thomas Jefferson. Roberts has explicitly embraced Marshall’s vision. Stevens, however, takes the Jeffersonian view. “I don’t believe in suppressing dissent,” he told me. “If you disagree you should say so. . . . I just feel I have an obligation to expose my views to the public.”
Stevens’s work on the Commission of 1969 brought him to the attention of Senator Charles Percy of Illinois, a moderate Republican who had decided to promote merit appointments to the federal bench instead of political cronies or ideologues. On Percy’s recommendation, President Nixon appointed Stevens to the U.S. Court of Appeals in Chicago in 1970. And five years later, when President Ford was looking for a replacement for Justice William O. Douglas, a liberal icon, in the wake of the Watergate scandal, he, too, decided to emphasize merit and competence over ideology or cronyism. Rejecting the advice of Barry Goldwater, who urged him to appoint the archconservative Robert Bork, and of his wife, Betty, who urged him to choose a woman, Ford chose Stevens as “the finest legal mind I could find.” The Senate enthusiastically agreed, by a vote of 98 to 0.
As a sign of how significantly the
I suggested that someone who held Stevens’s views would never be appointed by a Republican president today. “I suppose that’s probably right,” Stevens replied, shaking his head. Nevertheless, he emphasized that he still thinks of himself as a judicial conservative, which he defined as someone who tries to follow precedents and “who submerges his or her own views of sound policy to respect those decisions by the people who have authority to make them.” He insisted that although some people have called his record a “surprise,” his votes on the court have been consistent with the views he expressed during his confirmation hearings and as an appellate judge. “I don’t think that my votes represent a change in my own thinking,” he said. “I’m just disagreeing with changes that the others are making.” His own politics, he added, were far from liberal, noting by way of example that he believes in the powers of the free market and isn’t sure if the minimum wage is a sound policy. I asked whether he still considers himself a Republican. “That’s the kind of issue I shouldn’t comment on, either in private or in public!” he said with a smile.
Stevens is modest, friendly and even-tempered, and after he was appointed to the Supreme Court he got along well with his new colleagues. But he has made few close friendships on the court, with the exception of Souter, and during Stevens’s early years, he became known as something of a maverick. His opinions were hard to classify in ideological terms, and he seemed less interested in persuading his colleagues than in explaining his own reasoning about every case as thoroughly as possible. “At the beginning, he got a reputation as being a nit-picker,” says his longtime friend Abner Mikva, former chief judge of the U.S. Court of Appeals for the D.C. circuit. “The majority and dissent were fighting about major issues, and he was worrying about the edges.”
Stevens’s reputation as an idiosyncratic loner was enhanced by his unique work habits. Unlike his colleagues, for example, Stevens did not let his law clerks join the common pool of shared clerks who collectively review the more than 7,000 petitions that the court receives each year from litigants and make recommendations to the full court about which cases should be heard. Only when a justice and his clerks individually review each of the petitions, Stevens says, can they ensure that the other justices aren’t overlooking important allegations of wrongdoing from marginalized applicants whose voices deserve to be heard, like Sherman Skolnick, the Chicago activist.
Since Stevens joined the court, he has also been the only justice routinely to write the first drafts of his own opinions — the other justices have generally relied on clerks to write their first drafts and then rewritten (or at least edited) the drafts to various degrees. “Sometimes the draft is pretty short,” Stevens told me, “but at least I write enough so that I’ve had a chance to think it through.” Stevens said writing a first draft was “terribly important” because “you often don’t understand a case until you’ve tried to write it out.”
Stevens also distinguished himself as the only justice to spend a substantial part of each Supreme Court term away from Washington. He and his wife have a condominium in Fort Lauderdale, Fla., and they spend two weeks a month there from November through April. (In 1979, Stevens was divorced from Elizabeth Jane Sheeren, whom he married in 1942, and married Maryan Mulholland Simon.) “I do much more work in Florida than I do here,” Stevens told me, looking contented. He sometimes reads briefs on the beach. “One of my favorite memories is the time I was sitting” on the Supreme Court bench in Washington just after returning from Florida, he recalled. “I shook the sand out of the brief!” During his early years on the court, Stevens was known as “the FedEx justice” because he would hand-write his drafts on a yellow pad, dictate them for his secretary, FedEx them to Washington so she could type them up and then FedEx back and forth with his law clerks for editing. “That was cumbersome,” he recalled. But he switched to computers about 20 years ago and, with a secure Internet connection and phone line, he has become the first telecommuting justice.
Stevens has no security agents in Fort Lauderdale — he says they would only attract attention — and is so low-key that most of his neighbors don’t seem to realize they have a Supreme Court justice in their midst. “I’m basically anonymous down there, which is the way I like it,” he said. Stevens said some good friends in a nearby building didn’t know who he was for quite a while. “I’d be reading briefs by the pool, and one of them would say, ‘That’s awful stuffy!’ ” He swims every day in the ocean, plays tennis at least three times a week and plays golf two or three times a week. “I get a lot of exercise down there, and my wife feeds me very well, so it works out very well,” Stevens said happily. He tries to maintain this vigorous exercise schedule when he is in Washington, playing tennis two or three times a week, often with one of his three daughters. (His son died in 1996 of cancer.) He is in such good physical shape that, in 2005, at age 85, he threw the first pitch at a Cubs-Reds game at Wrigley Field and got it right over the plate.
During Stevens’s first years on the court, he sometimes commuted to Florida in an unusual way: as the pilot of his own private plane. “My secret ambition was to get Gerry Ford to take a ride in my airplane,” he said. “Any plane that contains the president becomes Air Force One,” Stevens explained, so “I would be able to call the tower and say, ‘This is Air Force One!’ ”
Stevens’s approach to the job changed noticeably when Blackmun retired in 1994 and Stevens became senior associate justice. He devoted more attention to using his new assignment power to build majorities and to persuade the swing voters,
The first is that the government has a duty to behave impartially, rather than favoring one group over another for partisan or sectarian reasons. “It seems to me that one of the overriding principles in running the country is the government ought to be neutral,” Stevens told me. “It has a very strong obligation to be impartial, and not use its power to advance political agendas or personal agendas.”
Consider affirmative action, an area in which many people believe Stevens became more liberal. In 1980, he dissented from the court’s decision upholding racial preferences in federal contracting, explosively comparing them with the Nazi laws excluding Jews from citizenship. More recently, however, he has voted enthusiastically to uphold affirmative action in universities and public-school enrollment plans, comparing them to welcome mats rather than no-trespassing signs. To Stevens, however, his views have been consistent. “There’s a tremendous difference in using affirmative action when you get a group to build a highway and affirmative action in the educational context,” he told me. “I think my rhetoric was probably a little strong,” he continued, but the federal law authorizing racial preferences for highway contracts was a “slapdash statute” that was based on pork-barrel politics, benefiting one group of contractors rather than citizens as a whole. In schools and universities, by contrast, “the whole student body profits from having diversity in the classes. So I really don’t think I’ve changed my views about this.”
Stevens has been prescient in cases involving race discrimination. As early as 1948, when he was a law clerk, he wrote a memo to Rutledge suggesting that segregation was unconstitutional, as Diane Amann, a visiting professor of law at the
Abortion is another area in which Stevens has insisted on the duty of the government to act impartially rather than favoring some groups over others for sectarian reasons. He has suggested that restrictions on a woman’s right to choose may be unconstitutional because they reflect religiously motivated views about human life — thus violating the government’s responsibility under the First Amendment to be neutral between religious and secular viewpoints. “I think the less judges have to decide the better, and I frankly look at who should decide this,” he told me. “Obviously, I think basically the woman is the person most affected by it and has tremendously important interests; better to have her decide these questions with her own counselors and guidance than to have judges and legislators deciding something like this.”
Stevens says he thinks if Roe v. Wade had been written more narrowly, the court might have avoided some of the criticism that ensued. “In all candor,” he told me, “I think Harry [Blackmun] could have written a better opinion. I think if the opinion had said what Potter Stewart said very briefly” — namely that the right to marital and family privacy previously recognized by the court included a right to choose abortion — “it might have been much more acceptable, instead of trying to create a new doctrine that really didn’t make sense.”
When he went through the confirmation process in 1975, just two years after Roe, Stevens recalled, he was not asked a single question about it. Only later, because of the reaction that followed Roe, did abortion become a central issue in national politics. “I’m really not sure that it’s fair to blame the court for the hostility that’s come on, but I do think that a better opinion might have avoided some of the criticism.”
Stevens’s conservative critics have been skeptical of his claims of judicial neutrality. In a critique of Stevens’s “sometimes eccentric” jurisprudence, Robert Nagel of the
Another of Stevens’s longstanding themes is the need for judicial oversight of broad claims of executive power, starting in the post-Watergate era. Stevens’s repeated insistence that the president isn’t above the law has led him to rule not only against President Bush in cases concerning the prosecution of the war on terror but also against President Clinton in Clinton v. Jones, in which Stevens wrote the majority opinion in 1997 allowing the Paula Jones sexual-harassment suit to proceed while Clinton was in office. I mentioned that many people had ridiculed his prediction that the Clinton v. Jones case “appears to us highly unlikely to occupy any substantial amount of” the president’s time. “I remember somebody writing, ‘That’s the dumbest statement in history,’ ” Stevens said with a laugh. But Stevens is convinced he was absolutely right. “The discovery in that case should have taken a day or two,” he told me. “Of course, I didn’t realize at the time we wrote it that the independent counsel was going to get involved, and we didn’t realize that the president wasn’t going to tell the truth!”
Nevertheless, Stevens insisted, it wasn’t fair to blame the court for having precipitated Clinton’s impeachment. “The issue in that case was whether he could have the trial postponed until he left office. But everyone agreed that the deposition had to go forward — even Clinton’s lawyers,” he said. “So the decision had absolutely no impact on the impeachment, but I know I get heat for it.”
Stevens is similarly confident about the other recent majority opinion he wrote for the court that has inspired fierce criticism — Kelo, which held in 2005 that the city of New London, Conn., could use its power of eminent domain to seize a woman’s house and redevelop private land into a commercial office park. The decision has energized the grass-roots property rights movement. To Stevens, however, the decision is a textbook example of judicial restraint, deferring to the policy decisions of elected officials and following clearly established precedents. “As you know there are pressure groups that have very strong feelings about property rights,” he told me. “I sympathize with all that, but I thought that was a clear case of what the law compelled.” He added: “It’s part of the job to write unpopular decisions. No doubt about it.”
Stevens’s final judicial theme is that the court has an obligation to protect ideals of equality and liberty in light of the nation’s entire history, rather than legalistically parsing the original understanding of the Constitution. As the court moved right during the past 20 years, Stevens increasingly saw it as his role to interpret the Constitution with fidelity to all of American history, rejecting the claim of Justices Antonin Scalia and Clarence Thomas and Judge Robert Bork that the original understanding of the 18th-century framers is all that matters. I noticed a copy of Bork’s book “Slouching Toward Gomorrah” on Stevens’s coffee table and expressed surprise. “He and I were good friends,” Stevens said laughing, and confessing that he hadn’t read the book. But Stevens disagrees with Bork’s exclusive emphasis on original intent: “Originalism is perfectly sensible. I always try to figure out what the original intent was, but to say that’s the Bible and nothing else counts seems to me quite wrong.”
In Stevens’s most eloquent opinions, he has often invoked his own personal history to illustrate the narrative arc of the American experience. Last June, in his dissent from Roberts’s opinion upholding the power of a school principal to suspend a student for a banner that read, “Bong Hits for Jesus,” Stevens mentioned some “personal recollections that have no doubt influenced my conclusion that it would be profoundly unwise to create special rules for speech about drug and alcohol use.” He went on, “The current dominant opinion supporting the war on drugs in general, and our anti-marijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student.” Just as prohibition in the 1920s and early 30s was “secretly questioned” by thousands of otherwise law-abiding citizens, he continued, so opponents of the war on drugs today may express their views only silently for fear of majority disapproval. In a concurring opinion, Justice Thomas insisted unapologetically that, because teachers in the colonial era imposed strict discipline “with an iron hand,” students today should have no First Amendment rights of freedom of speech in public schools. Stevens, by contrast, interpreted the amendment in light of the reality of 20th-century protest movements, including anti-Vietnam demonstrations at the Democratic convention of 1968, which took place in Grant Park outside the Stevens Hotel in Chicago.
Some legal scholars view Stevens’s sense of history as a reason for his warm embrace by liberals. “Stevens became the leader of the left on the court,” says Robert Post, a professor at Yale Law School, “because he’s able to say, ‘I remember, and I’m faithful to what has happened in the past, but my fidelity is to all of American history.’ ”
Stevens looks to be in remarkable shape for an 87-year-old man and, as he stressed in his confirmation hearings, his family has a history of longevity. His father died a week before his 88th birthday, and his mother lived until 97. Stevens told me that he has no intention of retiring. “Harry Blackmun used to complain about how hard the job was, how it was a real burden, and he was a workaholic,” Stevens told me. “But I like the job,” he said with a laugh. “I wouldn’t stay here if I weren’t enjoying it, and I’m really privileged to have this job.” He looked at me earnestly. “It’s not everybody my age who is able to continue to do work that he likes to do,” he said. “I think I’m making probably a positive contribution at it still, so I don’t think I have an obligation to quit, although probably a lot of people out there think I should.”
Nevertheless, Stevens can’t remain on the court forever. Buoyed by the hope of a Democratic president, liberal legal scholars are already speculating about the possibility that Stevens might be succeeded by a similarly liberal justice in the next few years.
A natural place for a Democratic president to start looking for candidates would be to choose a justice in the model of Breyer, Ginsburg or Souter. But liberal interest groups are unlikely to be satisfied with a justice in their molds for the simple reason that none of them are considered liberal enough.
If a Democratic president wants to replace Stevens with a justice even more liberal than he is, another possibility would be to look backward to the old-style liberal philosopher kings of the Warren era, exemplified by Stevens’s predecessor, William O. Douglas. But a Democratic president would be unlikely to choose a candidate from among the liberal philosopher kings, because a political constituency no longer exists to support the 1960s-era notion that the courts are equipped to reconstruct American society along egalitarian lines. An opposite strategy, recently advocated in The New Republic by Douglas Kendall of the Community Rights Counsel and James Ryan of the University of Virginia, would be to appoint a “progressive originalist” who could turn Scalia’s methodology against him, invoking the original understanding of the Constitution to justify liberal rather than conservative results. In a response to Kendall and Ryan, however, Post and his fellow progressive scholar Reva Siegel, also of Yale Law School, have argued that the attempt to beat Scalia at his own game is a capitulation to the conservative terms of debate that is also unlikely to resonate with liberal voters in the country as a whole.
I recently asked Post and Siegel to identify a progressive vision for the next liberal justice that could mobilize Democratic voters as well as provide an effective counterweight to the four movement conservatives on the Roberts Court. They answered that the next truly liberal justice would have at least four qualities. First, in an age when the conservative justices are determined to cut off access to the courts in cases from civil rights to terrorism, the next liberal justice would interpret the Constitution to provide “access to the courts to enforce the rule of law” and would “understand that even the most powerful president is not a king.” Second, the justice would “interpret the Constitution in light of the entire history of the nation, and not just in light of the Constitution’s drafting history.” Third, the justice would “interpret the Constitution to create conditions of equal liberty to participate in the life of the nation” — in areas ranging from abortion and sex equality to affirmative action and campaign finance reform. Finally, instead of reading the Constitution in a cramped, legalistic fashion, the justice would “interpret the Constitution to create a partnership between courts and the popular branches,” encouraging Congress and the American people to debate and define constitutional values. They provided, in effect, a list of the very qualities that defined the mature vision of Justice Stevens.
Identifying potential Stevenses in their 40s or 50s may not be easy: Stevens after all, hadn’t evolved into the justice he would become when he joined the court at age 55. But one way to identify future Stevenses may be to focus less on ideology than on temperament. Stevens’s successor should share his dedication to preserving the deeply rooted precedents of the past, and that dedication reflects his sensibility and character more than his personal politics. When we talked, I was especially impressed with Stevens’s character: his engagement, curiosity, combination of toughness and vision, strong internal compass and refusal to go along with the crowd, his decisiveness, analytical power, modesty (but not false modesty), devotion to the court as a steady institution and sense of wonder and gratitude for the remarkable opportunities that had come his way.
Near the end of my interview with Stevens, as I started to leave his chambers, he almost shyly suggested that I might want to consult some of the opinions he wrote on the U.S. Court of Appeals in Chicago, before he joined the Supreme Court. I should be sure, he said, to look up a case from 1970, in which his colleagues, at the request of an incumbent U.S. senator from Indiana, stopped a recount in a close election on the grounds that it might compromise the integrity of the ballots. Stevens dissented, insisting that the recount procedures were perfectly fair and that the state judges should be trusted to handle the litigation honestly, without having their impartiality questioned by interference from federal courts. I asked Stevens why the decision was important. “Because,” he said, his eyes flashing, “I had it very much in mind when I wrote Bush against Gore.”
Even as his opinions have made him a model for liberals around the country, Stevens is more interested in demonstrating his intellectual consistency and temperament as a judge’s judge. “You write what you think is correct and important,” he told me matter-of-factly. “I don’t consider myself a mobilizer.”
Jeffrey Rosen, a law professor at George Washington University, is a frequent contributor to the magazine. He is the author most recently of “The Supreme Court: The Personalities and Rivalries That Defined America.”
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