ABSTRACT
As the 2002–2003 term of the United States Supreme Court unfolded, few if any of its pending cases received as much media attention as the twin bill of affirmative action cases. In Grutter v. Bollinger and Gratz v. Bollinger, the Court had taken on two distinct challenges to affirmative action policies at the University of Michigan (UM). Barbara Grutter was challenging a racial preference system built into UM’s School of Law, and Jennifer Gratz was challenging the use of racial preferences by UM’s undergraduate admissions. Through the briefing, oral argument, and subsequent Court deliberations, most of the betting ran against the university. Recent Supreme Court decisions had struck down affirmative action plans in employment and contracting; a majority of the justices had records hostile to racial preferences in nearly all contexts. Moreover, most elite colleges and professional schools had been using racial preferences to favor minorities in admissions for over 30 years, and nearly everyone conceded that such programs should not persist indefinitely. On June 27, 2003, the Court announced both decisions. In Gratz v. Bollinger, a 6–3 majority of the Court ruled that UM’s undergraduate admissions system was patently unconstitutional; in Grutter v. Bollinger, the Court held by a slender 5–4 vote that the law school’s system survived constitutional scrutiny, but only subject to a number of constraints and only temporarily. On its face, this seemed like a stinging rebuke to the university’s policies and a considerable narrowing of the scope of affirmative action. Yet the front pages of newspapers across the country the next day showed a gleeful Mary Sue Coleman—the president of the university—literally jumping for joy on news of the decisions. The question must be asked: why was this woman smiling?
