The late Powell was succeeded in the centrist role over the years by such middle-ground brokers as Sandra Day O’Connor and Anthony Kennedy, both of whom are now retired and have no counterpart on today’s polarized bench dominated by six conservatives with only three liberals.īased on previous sentiment from justices in today’s right-wing majority, the court appears ready to overturn Bakke and upend practices designed to boost campus diversity. Unlike in past decades, the current court has shunned compromise and plowed through precedents, as demonstrated by June’s decision overturning the 1973 Roe v. The eventual judgment fell to a moderate, centrist justice, Lewis Powell, whose role points up a striking difference between that court and the modern bench: There is no middle. Private papers of deceased justices, including the first Black justice, Thurgood Marshall, reveal the tactics among the nine that produced the 1978 decision and how competing factions tried to steer the outcome. Today’s reconstituted conservative court appears on the cusp of reversing the landmark that has let colleges consider students’ race in admissions, expanding opportunities for Blacks, Hispanics and other minorities for more than four decades. Bakke is the touchstone for two cases to be argued next week on admissions policies at Harvard University and the University of North Carolina. That hard-fought precedent in Regents of the University of California v.
Memo from Justice Thurgood Marshall to fellow justices regarding the Bakke case.
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