Breaking In: The Rise of Sonia Sotomayor Read Online Free PDF Page A

race … an environment where cross-racial understanding is promoted, an environment where the … educational benefits of diversity are realized.”
    Chief Justice Roberts and the other conservative justices suggested that such an open-ended standard was unworkable and that the university’s reluctance to fill in the contours of “critical mass” made it difficult to assess its constitutionality. Justice Kennedy, voicing skepticism throughout the argument for the university’s position, focused on “this hurt or this injury” arising from screening by race.
    Since he joined the Court in 1988, Kennedy had never voted to uphold an affirmative action program and had dissented in Grutter v. Bollinger , asserting that the majority’s review of the University of Michigan Law School program was “nothing short of perfunctory.” He insisted that “the Court’s refusal to apply meaningful strict scrutiny will lead to serious consequences,” notably that faculties and administrators will have little incentive to devise “new and fairer ways to ensure individual consideration.”
    In this new case, it appeared that Kennedy was ready to vote to strike down the University of Texas program and again try to curb the discretion of campus administrators. A big question was how sweeping the Court’s opinion might be and how it would affect policies nationwide.
    Blum was feeling optimistic that affirmative action was going down. After the arguments, he treated Abigail Fisher, her parents, Rein, and an entourage of thirty other people, including donors, to a meal at Morton’s Steakhouse in downtown Washington.
    Two days later, the justices took a preliminary vote in a private meeting, known as the “conference,” as was the usual practice after a round of oral arguments. These justices-only conferences occurred in a small oak-paneled room off the chambers of the chief justice. At a rectangular table below an intricate glass chandelier they cast their votes in order of seniority. Then the most senior justice in the majority would decide who was to write the opinion for the Court. The most senior member of the losing side would decide who spoke for dissenters.
    In the University of Texas case, it initially looked like a 5–3 lineup. The five conservatives, including Justice Kennedy, wanted to rule against the Texas policy and limit the ability of other universities to use the kinds of admissions programs upheld in Grutter v. Bollinger . The three liberals were ready to dissent.
    Yet that division would not hold. The case would go down to the wire, unresolved until the final week of the Court term in late June.
    The deliberations among the eight (Justice Kagan did not participate in any of the negotiations) took place over a series of draft opinions, transmitted from computer to computer but also delivered in hard copies by messengers from chamber to chamber as was the long-standing practice.
    Individual justices ended up assuming critical roles, among them Sotomayor as agitator, Breyer as broker, and Kennedy as compromiser.
    The justices’ deliberations are highly secretive and rarely revealed.But in conversations with a majority of justices, some of the negotiations in this case and Sotomayor’s role in the final decision became evident. 13
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    The protracted negotiations occurred as Sotomayor was promoting publication of her new book, My Beloved World , and extolling the virtues of affirmative action in interviews. “I had been admitted to the Ivy League through a special door,” she wrote in the book, “and I had more ground than most to make up before I was competing with my classmates on an equal footing. But I worked relentlessly to reach that point, and distinctions such as the Pyne Prize, Phi Beta Kappa, summa cum laude, and a spot on The Yale Law Journal were not given out like so many pats on the back to encourage mediocre students.” 14
    In related interviews, Sotomayor offered a contrast to