tv Landmark Cases Regents of the University of California v. Bakke CSPAN May 19, 2018 7:00pm-8:34pm EDT
the affirmative action case, regents of the university of california versus bakke, followed by house speaker paul nd other members of congress discussing the agenda in week ahead. then later, president trump's oval office meeting with the nato secretary-general. allen, a the car is major of civil rights cases returning to his home after returning from his fight entering middle school school. -- medical school. >> it is a reflection of richard nixon and gerald ford and a reflection of an american society that says these people can sit in the front of the bus, sit downstairs in the movie theater, registered to vote, why aren't they happy with that? >> this will bring the civil rights movement back into the focus where the majority of americans can support it.
this haseral view is, been enhanced, that is what i told the president. he was pleased to know that. lose 5-4, 8-one, you have lost a great decision. all persons having business in front of the united states is to give their attention. >> this explores the human story and constitutional dramas behind 12 historical supreme court decisions. >> mr. chief justice, may it please the court. >> good evening and welcome to landmark cases. tonight, affirmative action, in issued thisurts
decision on this issue in the bakke case. the uc's affirmative action program was declared unconstitutional. the court and the country wrangled for decades over affirmative action. our guests tonight understand the history of this case. both of them teach at georgetown law, but with very different legal philosophies. neal katyal argued 37 cases in the court overall. he clerked for justice breyer. and he is a partner at the hogan level law firm in d.c.. randy barnett is the director of the georgetown center for the constitution. he argued an important case before the supreme court and is the author of "a republican constitution," published in 2016. in that opening, the historic
newscast with dan rather, we heard affirmative action, both this execution and value for a society, two very different views. what do you think, randy? randy: this basically set the agenda we live in today. all the talk we have heard about diversity, everyone were has -- who has grown up in the last 30 or 40 years has heard about diversity. it never ends. diversity comes from this case, in powell's opinion, it became the rationale that allowed racial preferences to be used. susan: neal? neal: first of all, it is a joy to be here. i agree with you entirely, randy. i'm not sure i am going to be saying that all night, but bakke put the terms for affirmative action front and center.
the debates we have had ever since are all microcosms are what we saw in the clips. susan: this is a 14th amendment case, which says, no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states, nor shall any state deprive any person of life, liberty, and property, without due process of law or deny any person within their jurisdiction, equal protection of the laws. what aspect of bakke makes it a 14th amendment case? >> it is considered to be equal protection. the allegation made by bakke was that he was denied equal protection by the uc davis medical school, because he was excluded from uc davis medical school on account of his race. that made it an equal protection case under the cases that had
come out to that point. susan: neal, we will listen to a clip. it is two justices in a narrow timeframe, justice scalia and justice sotomayor both talk about affirmative action. [video clip] >> there are those who contend it does not benefit african-americans to get them into the university of texas where they do not do well. as opposed of having them go to a slower track school where they do well. briefs pointed out the most of the black scientists in this country do not come from schools like the university of texas. from lesserrd schools where they do not feel they are being pushed ahead in classes that are too fast for
them. >> i was a law student. one of my dear friends invited me to a dinner and introdued me as a graduate of princeton who had come from the south bronx and was doing whatever i was doing at the time. everyone got introduced. the partner sitting across from me looks at me and says, did you get into yale because of affirmative action? he hadn't seen my resume, yet. [laughter] i looked at him and said, it might have helped, but i also think graduating summa cum laude phi beta kappa of princeton with , its highest academic honors had a little bit to do with it, too.
>> justice scalia was one of our leading lights on the judiciary, but he made mistakes, and he was roundly criticized for what he said in that oral argument, not just because it was factually wrong, but because it misstated the true rationale for affirmative action. which, comes back to what we are talking about today, the balky case -- bakke case. in the university of california vs. bakke case, the rationale for affirmative action has survived. it has become that way all over the country. it is not we are trying to benefit diversity, it is more like we are trying to benefit everyone with experiences in and outside the classroom. it is that's rationale that -- that rationale that conservative funded litigation has tried to knock out for years and have never really done a particularly good job. randy: it was not justice scalia's finest moment in how he articulated that. he tried to articulate the
mismatch theory, people need to be admitted to schools they are more qualified for, because they will do better and graduate more frequently and it will be beneficial to everyone. i thought the justice sotomayor excerpt was kind of interesting. it suggested she was a little sensitive about being characterized about being an affirmative action admittance. -- admit. she didn't deny it, but she wanted to a farm that was not the major reason. why not? i think why not is the reason that justice thomas said in his opinions in this area, and that is that there is a potential stigma attached to all minorities, because some minorities are admitted under affirmative action programs that some will then say means they are less qualified. i think she manifested a bit of sensitivity on that subject.
neal: as well, as athletes, when they are condemned, because you got in because you play ball, or legacy admissions, what we are talking about here, federal courts saying it is unconstitutional for universities to do this, even if you deeply believe it, we are taking it off the table. that is a policy debate that should be had. add every university, does it stigmatize or not but the idea , this makes it unconstitutional is very tough argument. randy: i agree. i think neal and i will be agreeing about a lot. that goes with the mismatch theory, going to whether the policy is a good policy or not. it may or may not be relevant to whether the policy is constitutional. we need to keep these issues straight. susan: one of the aspects of this series that makes it so
interesting are your questions. we will be going to calls in 10 minutes or so. if you live in eastern or central time zones, here is your phone number. if you live in the mountains or farther west, here is the other number. you can also send us a tweet. please use the hashtag, #landmarkcases. we will mix your tweets into the conversation. let's go to the definition of affirmative action. we will learn more about the policy definitions. the first time we heard reference to it was in 1961. president kennedy required affirmative action from government contractors to hire minorities. so what happened in the 1960's , and going forward, with the
government's interest in giving people a leg up because of their gender or race? randy: i am old enough to remember that affirmative action had a somewhat different connotation when first introduced into popular discourse. it was first about recruiting people who had been previously excluded. because we all know, we tend to admit people that are like ourselves. we tend to talk to these same people and recruit from the same places. if we want to have an integrated society, we should affirmatively go out and identify qualified people, and make an effort to recruit and hire them. that is what the affirmative action parts meant that, it didn't necessarily mean preferential treatment or different standards. it came to mean that for better , or for worse, that came to me later on. i think it is important to be
-- to realize you can engage in affirmative action without engaging preferences. neal chaired the committee that hired me at georgetown. it took affirmative action on his part to recruit me and get me into the faculty, and i will always be grateful. i would count that as affirmative action on his part. it is not to say that preferences are excluded as part of the package, only that affirmative action should not be limited to preferences. susan: a case in 1974 involved the university of washington law school. the court is something called ruling in moot. what does that mean? what happened there? neal: the case went away because of the change in circumstances. it happened to me this year, when i was bringing it into the supreme court the second time around, president trump changed the travel ban a couple weeks before the oral argument. then, his solicitor general had
it suggested the case had basically gone away, which changed by circumstances. . similar, this case in 1974, the court says there is a change in circumstance. the person had graduated, and the case has gone away. one of the fundamental lessons about the u.s. supreme court, they don't almost ever have to do anything. they do a lot by doing very little. deciding not to do something is leaving the democratic conversation to unfold. in 1974, this was a very rapid time of change happening in the supreme court, where just two decades before, you had brown v. board of education, which defines what the warren court is all about. then, warren came off the court, replaced by chief justice
burger. president nixon nominates four justices to the supreme court in the first three years of his term. by 1974, you have change in the way the court does composition. it is not surprising when you have something like that that the court will not sometimes get into a hot button issue until they have to. the bakke case was going on in the california supreme port system. -- court system. other cases were unfolding of the lower court. that is common. susan: here are others you will be hearing about. they opened a middle school school -- a medical school at uc davis in 1968.
by the time the bakke case came around, 16% of the seats had been set aside for special committee admissions. alan bakke was 35 years old, a former marine corps officer and engineer who decided his calling was medicine. he applied to other medical schools, but was rejected because of his age. what should people know about justice powell? randy: he was a man of the south, something that wrangled justice thurgood marshall during the deliberations on this particular case. getting him to come around and essentially be the deciding vote on this case was a major accomplishment for the advocates of affirmative action. susan: another member of this cast tonight, justice thurgood marshall. what should people know about him?
neal: probably the most legendary lawyer in 200 years. created a litigation strategy that led to brown v. board of education. became our first african-american solicitor general. he was a judge on the second circuit court of appeals in new york. he was an african-american justice on the supreme court and a legendary heroic figure. susan: we visited the library of congress and their archives on legal matters. ryan shows us a letter written to the naacp from justice marshall. [video clip] let's watch. >> we are in the library of congress. what we have here is a collection of documents from a variety of personal papers and organizational records pertaining to thurgood marshall. this letter, written by thurgood marshall, to miss one eda e
jackson -- one he to -- juanita e jackson, the special assistant to the naacp to of the naacp. the reason for this letter was to draw attention to the victory in murray vs. pearson, a state of appeals of maryland case, in which murray had applied to admission to maryland law school and had been denied, justice marshall was denied three years earlier. the groundwork was laid for a new approach to desegregation, statute by statute. law school was one means to do that. by working with pearson, marshall hoped to show the strategy for desegregation would be effective. hamilton is already working for the naacp. this is a means to draw him in later. he becomes a central actor in
these efforts. susan: his own experienced background and the case in which he was involved with all come to bear. let's talk more about alan bakke's credentials applying to medical school. 468 out of 500 in admissions. 3.46 undergraduate gpa. and scored in the 97th percentile on the medical college administration test your it he applied in 1973 and 1974, and was rejected both times. the second rejection was what started the legal challenge. i want to ask about the age factor. he could've pursued this on the age discrimination basis. randy: this was before age was considered any suspect classification that could be challenged, or any civil rights
laws on the basis of age discrimination. he was told by another medical school he interviewed with that his age made it uphill struggle for him to get admitted. he completed engineering school. he was supposed to be a first rate engineer. he did a combat tour in the marines before he decided he wanted to do medicine. you would think with all that going for him that medical schools would welcome him, but it wasn't only uc davis. it was all the medical schools he applied to did not welcome him. i think he thought, and he was right, that age had a lot to do with it. neal: the university made a conscious decision not to go after bakke in any way. the california supreme court
said, maybe he wouldn't have gotten him admitted, but the university conceded he would have gotten in but for this affirmative action program. in this day and age, so many people demonize the other side, but i was very struck by the tone the university took toward him at every turn. randy: by the same token, bakke did not use this platform to create a cause for himself. he avoided the limelight during the litigation and everyday since. that is not something we see nowadays, where everyone wants to be famous. being an important plaintiff in a lawsuit would make you famous. susan: the first legal challenge
was in a county superior court. he sued the region. the judge there found this program unconstitutional and in violation of title vi and that bakke's admission needed to be reconsidered. both parties ended up appealing. i'm wondering how often that happens. neal: there was this title six issue in the case you were talking about. he has talked about his affirmative action constitution under the 14th amendment, but a federal statute prohibits discrimination in universities that accept federal funding. sometimes some of these court decisions talk about that statute, not the constitution. what happened here was something very unusual. the university said, this is so important to us.
we don't want to go to california intermediate court, the court of appeals in california. california supreme court, let's take this case. there are similar ways to do that in the federal court system. but it is used in cases of extraordinary importance, this -- in which there needs to be a decision right away. that is what the california supreme court did. susan: a 6-1 decision in favor of bakke. randy: right. and they couldn't do it fast enough before the person graduated and they knew the supreme court was prepared to hear a case like this. they said, let's get a move on. susan: the headline from that supreme court decision in california, but then the school continued to pursue it. this was how important the policy was.
talk about the jump from the california supreme court to the u.s. supreme court. neal: they have the option, do we ask the united states supreme court to hear it? ordinarily, the court says, california court, you know california law, we don't -- or any other state. but, here, the california supreme court decided a federal issue. because of that, the university was able to say, supreme court, hear our case. to do that, you have to file a petition for a writ of certiorari. that says, i, the supreme court, am asking you to hear my case. there are 9000 requests every year and the supreme court grants about 65 of them.
this is what the university did. they filed a petition to say, hear our case. what is interesting about the petition, it is not a petition that really sums up what we think of bakke. we think of him as the diversity rationale, people learning from each other. but on the first page, you are asking the supreme court to answer a question. the question they said -- when only a small fraction of thousands of applicants can be admitted, does the university of -- does the equal protection laws allow university faculty from voluntary seeking to counteract the effects of generations of pervasive discrimination against minorities by establishing a special admissions program that increases opportunities for well qualified members of racial
minorities? that is a long question. but, basically, what it is saying at the end is can we have , a affirmative action to remedy the societal effects of past discrimination? we are making up for abuses at some earlier point in time. that is not affirmative action after bakke. afterward it was, we are not trying to make something up, but improve diversity in and out of the classroom. susan: let's go to the phone calls. first is glenn in michigan. hi, glenn, you are on the air. caller: thank you. i have a couple of questions. one is about the state of affirmative action programs. here in michigan and california, this led the way for a number of states to do this. there was an initiative that got
rid of race and gender preferences that passed overwhelmingly and became the subject of a lawsuit that went all the way to the supreme court. it was decided in 2014, a ban on race and gender preferences and that kind of stuff was developed. the initiative we passed was upheld by a 6-2 vote. i think justice sotomayor and ginsburg were the only ones that voted against it. anyway, my question is, if i remember correctly, it basically said, affirmative action was constitutional, but not a right. some people have argued it is. whered demonstrations angry students have chanted, affirmative action is the right, and that kind of thing. would you say there is any
legitimacy to the argument, affirmative action is a right? my second question is about affirmative action on the federal level. i remember there was a presidential candidate called bill graham a number of years ago. one of his big campaign lines, the first thing he would do after he takes his hand off the bible when he becomes president was to sign away affirmative action as a law. would it be that easy for trump? or any president to get rid of affirmative action that way? thanks very much. neal: let me start with your first question. i'm sure randy has a lot of talk on the subject as well. i was involved in that michigan case you were talking about. i thought your question was great. it summarized exactly the issue. which is you have in michigan , and california state referendums that ban affirmative action in the university.
plaintiffs came in and said, we have a constitutional right. you can't get rid of it. i am a big believer in affirmative action, but i thought that was a ridiculous argument. once you have affirmative action as an embedded right, you can't take it away even when there is a need for it, any number of things can change. when bakke was lititgated, archibald cox said, i am not here to say affirmative action is constitutionally compelled. i am here to say the university decides with its leadership to have affirmative action. then, absolutely, it is within their constitutional right to do
so. but it is also within their constitutional right not to have the program. randy: i don't have that much to add. susan: how about his second question? randy: neal can tell us more about how restrictive executive actions can be. under the last administration they seemed pretty unrestricted , under the last administration, but now we are finding out, there are restrictions on what a president can do we didn't hear about before. i would be interested in hearing what neal thinks. applied the same standard myself. i think many people have. obama'sy president executive actions were challenged every week. it's not like it's some new oh, we'ree, challenging executive power. but look, i think that the president would have latitude to rid of affirmative action as long as it's done, you know -- there are many statutes that require it. so if congress requires it, that's one thing.
it's a voluntary decision by one president to have affirmative action, i suspect aat there will be ways for future president to get rid of it. there may be some expectations and certain government contracts something like that, transition issues, but otherwise, i would think the president would have such power. >> and that's an important point. that is, the question is, does the statute give the president the discretion when he issues an executive order? statute doesn't, then that's a completely different situation. >> nathan is up next in connecticut. hi, nathan. >> hi. boy, i didn't expect that answer. thank you, susan, for this series. it's been very educational. and then myent question. my comment is that i personally support affirmative action think we would have had all white police departments all male fire departments without it. and my question is, two of our have been adamantly opposed to affirmative action. that was ronald reagan and
george w. bush. has president trump gone on record regarding affirmative action at all? >> not that i know of. of.ot that i know >> do you have another question besides that? >> no. that's it. you.ank next is rafael in new york city. >> great! first time, so thank you very much. tell you -- to share some personal experience. a physician. she is from queens, not from the bronx. but she's latina. and i think that, from my the affirmative action has enhanced the many minority families to become well off. that my wife
became -- after going from medicalin 1975, to the school, a three-year program they had there. 1978, when bakke came about. went to the hospital ob/gyn.e trained, as an we had three kids. our first kid decided to become a doctor. so, he went to the army. and he happened to be a bronze honor veteran. but right now, because of my that doctor, that really motivated my son, that to war, fighting for came back, went to columbia university. program.his then he went to new york. and he finished medical school.
and presently he is the psychiatrist in charge of the air force academy in denver, colorado. my final comment is that it the contribute to betterment of the community. in totality. i just wanted to share this with you. >> thank you. calling, sharing your story. >> well, i love your family. tohats off to your wife and your son. you know, one of the reasons your question is so great is know, itally, you picks up on exactly what happened at the oral argument in the case. california'sy of lawyer, cox, he began his argument with three facts. you his third fact. there is no racially blind selection which will enroll today more than a trickle in therity students nation's colleges and professions. he's saying, look, we need affirmative action because
gonna havee're almost no one. then he said, almost exactly what you just said about your and your son. he said, quote, yes, it's possible for a black to go to of minnesota or harvard or yale, once they see affirmative action. know johnny down the street and sammy's father, he became a lawyer and john's father became doctor. it's this idea of role modeling, the idea that when you see other minorities that are successful, then you yourself may be more profeftions that you -- professions that you thought were closed. thatat's interesting is all of these benefits that have certainly accrued to some of affirmative action -- and i don't know that we can really be sure that this caller's family was really benefited by affirmative action. they might have been admitted anyway. of these are relevant to the bakke case, even though they did come up in oral argument, were not irrelevant to some of the justices. some of the justices wanted to
bases ofe case on the that. thurgood marshall wanted to do it. there were not five votes to do that. were only four votes eventually to do something like that. and the fifth vote was diversity. went through this at the top of the show. so none of those justifications the constitutionally accepted justifications for affirmative action. they're notalthough completely unmentioned in the opinion. at basically, it does school -- does a school have an a diversen having student body in order to enhance its educational program? that's where this discussion of diversity has come from. the actual narrow justice powell very longhich for a time was only justice powell's opinion, and now it represents of the court. >> lewis, in fresno, california, you're up next. hi. >> hi. okay. i lived through 1978. time, ad, even at that 98 percentile in physics on the medical college admissions test.
1985, i retook the test. 99.9 percentile in 98% tile in biology and mathematics and like subjects. question is, how did the case get to the u.s. supreme going to sot was deservingaffect very students throughout the entire nation? air forceed in the and later i served in the army reserve and the california air guard.l and i did my best. and i had friends from every possible race in the nation, and equally.ll treated but when it came to test scoring, if you had the money to for kaplan test centers, you 99.9 raise your scores to percentile across the board. i would have done it if i had
money, but i was happy with physics.percentile in i would have gone beyond that if winningt been for bakke what he won in the case. it was enough to effect all the undergraduates who were wanting to apply to medical school. >> how did it affect? i don't understand. affect them? >> how did it affect him? >> what happened to you? did you go to medical school? >> it was very discouraging. yes, i did. puebla medical school in mexico. but i couldn't be a communist and that was what was being required at the time. like i said, many of my uncles, for the they had fought united states. and they had served in the united states' military. they -- >> lewis, thank you. i'm going to jump in. thank you for your own experience. if we can process anything there that will help us understand the case any better. on.me move thank you for your call and lived through that time.
here's what the court looked like in 1978. and the newest justice was john stevens. nixon appointees were larry blackman and william rehnquist. marshall.hurgood a kennedy appointee. byron white was still on the court. two eisenhower appointees. withwas the ninth year warren burgher as the chief justice. is there anything notable about ber berger court in terms of is racial decisions, things involving minorities? >> president nixon had made a number of appointments to the court at this time. politicalt, the substantially changed from the what weourt, which was might call a progressive court, court,re conservative
but a court that was not sort of conservative. it was just a pullback from the warren court. so, yes, it is actually quite significant. i think we would associate the position of the four justices who were aligned with justice marshall in this case with what warren court would have been expected to do. but because we are now in the berger court, that is not what we get. a complete't get aabandonment after affirmative action. we get is that middle ground that justice powell represented. that's characteristic of the middle ground you ultimately got from the berger court. >> when you think about the supreme court, when you study you think -- you can't just study one case, bakke, and say, snapshot, 1978. now we can figure it out by reading the briefs. you have to think about, what is at thert thinking about time?
this also goes to the 1974 case that they got rid of. the year before, the court decided something incredibly momentous, roe vs. wade. 7-2 decision. people took to the streets. they obviously put their thumb on one side of that scale. so is it any surprise that the next year, after rowe, they don't want to necessarily jump into affirmative action in such a hotbed way? passedur years have bakke. the court ismean, defined in the public eye by abortion and by really a strong decision. it's not all that surprising at the end of the day that the court lands in the do, withe where they the kind of middle of the road, randymised position as was saying. it's not one that gives all of the rationales of affirmative action, about making up for discrimination or role models or anything like that. narrowe narrower rationale. >> so you earlier told us about
of certiorari, commonly certs.d to as granting the university of california filed for cert in december of 1976. we're going to return to the library of congress for a really backstairs look at how the court works. this is a vote sheet from harry blackmon's papers that talks about how they managed to get enough votes to move the case forward. docket document is a from the harry blackmon papers. one, it tells you when the case argued. when it was voted on, and when it was announced. case to be want a heard by the supreme court, you have to file a cert memo. been those memos have reviewed by clerks, who then kick their opinions on to the then makes a decision to deny or grant the hearing. so you'll notice, there is a five-four split to vote for certification. the liberal justices,
particularly brennan and marshall, were worried that a negative decision or what they decision as a negative in this case would not align the jurisprudence that they believed were correct and justice, meaning they worried a opinion would diminish civil rights policies, hurt affirmative action and really undermine what marshall's main kind of worry was, that, yes, kind of address these injustices but you haven't gotten at the underlight createducture that's them. whereas the conservative concernedwho are more with the kind of -- kind of the liberty issue, they are all hear this case, because it does align with the that they believeudence is just. >> so it actually was three times this court considered had enough votes to grant the case cert moving forward whavment did you learn fromat did you that? are you familiar with that wrangling that goes on behind
the scenes? >> oh, yes. as a law clerk, you hear a little bit about it. beforely as a litigant the court, you are trying to understand that process as best you can from the outside. very interesting about that tally sheet is that normally today, in the modern people whort, the vote to grant to hear a case are thepeople who think decision in the court was wrong. so here, the decision was in favor of bakke. but the people who voted, according to thetally sheets, were actually the people who thought the decision below was right. and it was the liberals on the who were acting defensively and saying, oh, we don't want to hear the university of california's petition. don't hear it. go away! because if you hear it, then in california now might be the law nationwide, no affirmative action. thing.very interesting it is the case that the court will often relist, you know, and at anotherngs conference, that it will come up afterdiscussion, week
week. indeed now, the supreme court has moved to almost a rule that have to relist a case. they won't just decide to grant cert on day one of a case. >> at the same time, civil were reallyizations petitioning, urging the court, not to take up the case for the very same reason. were afraid that the outcome would be affirmative turned overies across the land. so how political is the court in that case? are they byed outside pressure? >> well, i don't think it's right to think of the court as political. mean, once you get on the court, and this is true for by republicannted presidents and democratic presidents, they are justices against theirvote president. you know, rehnquist was put on nixon but voted against nixon. court by put on the obama but voted against obama's health care plan. examples.l sorts of
clinton and the paula jones case and so on. i don't think their political in what youe, if that's mean. i do think that they do think about, you know, should we get a case, is the country ready for a decision? have all of the issues been adequately ventilated in the lower courts and is this the to decide something momentum tus? >> here's something that hasn't come out yet. it takes four votes to grant cert but five votes to win the case. getour justices who could the court to hear the case if they wanted to, they have to be or they'rent to five not going to vote for cert. i think the problem is here, for judges, they had a hard time figuring out how they were going to get to five and they didn't want to hear the case. we had the same thing happen in bear arms case. the n.r.a. didn't want that to go to court because they didn't thatto have a bad outcome would then be national. and so they tried to undercut
challenges to the court, including the heller case, as best they could. an independent group of people associated with institute, and other libertarians who brought that suit, over the objection of the who actually tried to subvert it, precisely for the same reason. of an adverseid ruling that would nationalize a bad rule on the second amendment. listen toe going to some of the oral arguments. twot a reminder of what the major questions were before the court. first of all, is race-based affirmative action constitutional? and secondly, is the university of california's quota based actiontive constitutional? so let's hear archibald cox's arguments. these were held on october 12, 1977. and there were two hours of arguments, which is a little bit longer than usual. normally now it's one. why there were two hours in this particular case? >> sometimes they'll expand argument.
that happenly had in major cases in which they want more. here we knew there were gonna be litigants, not two, because of the u.s. solicitor general, who appears in one third of all arguments. but this is a particularly important one. >> who is archibald cox? harvard lawfamous professor. he actually, after he retired, he joined the faculty as an emeritus at boston university. his office was next to mine when i was on the faculty. heard that voice occasionally coming from his office. so he was very well-known. to the general public for having been the special prosecutor who was to investigate watergate and eventually was robert borke when president nixon was opposing cox's use of a subpoena to try watergate tapes, the famous tapes that nixon himself had made. and then he was eventually replaced by jaworski, a different special prosecutor. that made archibald cox, who was somewhat obscure,
a household name. >> and he might become a name again. >> we're going to listen in as he makes some of his arguments regentshe court in versus bakke. impressesective that itself, partly because he istified it, partly because am, at least in part, an educator, is the importance of men and women at both undergraduate colleges and the medical schools so that girls,younger boys and forsay, yes, it is possible a black to go to university of minnesota or to go to harvard or yale. this is essential, if we are to give true equality effectual sense, because
the existence of opportunities shapes people's aspirations when very young. >> mr. cox, what if davis thatal school had decided since the population of doctors in the -- among minority population of doctors in california was so small, instead setting aside 16 seats for minority doctors, they would set 50 seats until that balance were redressed and the minority population of doctors that of the population as a whole? any more infirm than the program that davis has? >> well, i think -- my answer is this. there is no reason to condemn a theram because of particular number chosen. >> what do you think of this argument? that.ike i think my answer is this. it sounds like he was thinking about what his answer was when
he said that, actually. and also, i was struck by the listened-- i actually to the whole argument in preparation for this show. i was struck by how the justices talk without interruption for great expanses of time. the way the him solicitor general was always in oral argument, very deferentially, as opposed to his peppered who was heavily with questions. you heard that long excerpt. that's a long excerpt. that muchhear anymore. at the beginning or end of argument, you don't hear any almost anyn contested case, get that much time to speak. >> and number one, the reason is not anything about affirmative action. it's all because of one guy we earlier,ing about antonin scalia. your public can listen to any oral argument on oyz.org and you type in brown or whatever case you want to listen to. after 1986.
when scalia comes on the court, oral argument becomes a very different thing. you could come up with a speech. now i go off with one line on a i get thatnd hope one line out before i get my first question. that's the first thing. then-justice heard question tok that mr. cox. rehnquist was a fabulous questioner, just phenomenal. lot ofestion typifies a supreme court argument, which is they are the -- the justices are readg to say, okay, i've your brief, but how far does the logic of your position extend to? they come up with hypotheticals, like, okay, it's 50 16 out of 50 seats, it's out of 50 seats. does your argument still hold? why not? what are the logical limits to your position? that's really what the art of supreme court advocacy is all about. >> and cox was reading that speech. i know that, because at some skipped a line and it threw him off and he had to go
back. >> here is a bit of the other five. ronald coleman was a san francisco attorney who argued on behalf of allan bakke. the only case that he argued before the supreme court. let's listen. >> so part of your submission is, even if things are compelling interest, even if alternative, use of the racial classification is unconstitutional? it's believe unconstitutional. we do. >> is that because it's limited rigidly to 16? because it's limited to 16 but because the concept of classificationa becomes, in our history and in unjust andanding, an improper basis upon which to judge people. not believe that intelligence, that achievement, that able are measured by skin pigmentation or by the last an individual, whether or not it sounds spanish or -- asdo you mean by that that, to the 16 places, the allocation
dominantly by race? >> there's no question. 16 places was dominantly by race. >> and the dominant -- >> i have to go back to the record, if i may, just to reach that point. no nonminority people who were ever admitted to the special admission program. and i do not mean that that was for the lack of trying. >> what do you hear there? >> it's always tough to argue before the supreme court. it's particularly tough if it's your first time, as it was for mr. colvin. i do want to say -- i'm joined by a person on this panel who, a his first argument, did magnificent job. and everyone should listen to it. tos a rare thing, you know, do it, pull it off your first time. tomy sympathies go out mr. colvin, because the whole argument really, i think, didn't of hopedy that he kind it would. a way, yes, but
i don't think it was because of theargument at the end of day, as that tally sheet shows certiorarites on before the argument. i do hear -- i think all through litigation, the strategy of bakke was to say, this is a quota. 16 slots that no one else can get except minorities. a powerfuls argument. and that was probably his best moment in the argument, which you just heard. >> and we also heard that there was another argument from the happened general, who to be an african-american himself, wade mccree, offering of thets on behalf carter administration, because of the national interest the case.stration saw in the and the brief, if you look in lots of inputhad from members of the carter administration that they prepared for the court. then we'llre calls, move on to the decision. ted in oak park, illinois. hi, ted.
>> hi! you. this is great timing on the program. we just discussed this in my high school african-american studies class today. my question has to do with the rationale. was diversity accepted as a rationale, only race diversity gender diversity or political diversity? and secondly, at the time or there been any meaningful research as to givesr diversity actually superior educational outcomes, or is it just a plausible intuition? thank you. >> on the first question, the issue here was whether -- i mean, everyone agrees that withe admissions to higher education, diversity is important. always agreed with that, although diversity early on was used as a way of jews from the ivy league schools because too many jews were getting in on merit therefore the school went for geographical diversity in people from more iowa in who were not jewish. the issue here is whether race notaken off the table,
whether other things can be added in, but whether race is taken off the table such that was discriminated against because of his race, and so under the equal protection was, is race aue no-no? not whether other things could be used as pluses. was so interesting with the litigation strategy by the university in the case is that emphasize diversity at all. you have to go to page 54 of their brief before they actually diversity. it's only like not even a full sentence about it. we'llnetheless, as i know talk about in a bit, diversity for thehe rationale controlling opinion by justice powell. to answer the caller's question, said uh-huh,l got to consider diversity over a whole variety of you were forms, as talking about political, socioeconomic, it can't just be isolate out one race and think that's going to be sufficient. >> can i just say one thing about colvin's argument?
his argument off by saying, i am here, i represent this man. he wants to get into medical school. well, you know what? he got into medical school. and he said quotas are bad and off the table. what?u know he won on that point too. so as ineffective as i think we think he was, he got the two things he was going for. >> lewis henderson, nevada, the air. go ahead, please. right, sir. sorry. we're going to move on to adrian in the bronx. you're on. >> yes. i was -- i'm interested to find that he-- i understand was -- bakke was contesting about -- his admittance to medical school. but why wasn't a point made about age discrimination? because it seemed to be more of that he was rejected because of his age, which is i washey pretended, so wondering why a point wasn't made about aiming discrimination.
discrimination. >> as we said earlier, age discrimination at this point in considered not been a constitutionally basis of a challenge or statutorily. ageasn't until the discrimination act was passed, and i don't remember when that was, but i think it was under that this became a statutory remedy under u.s. law. >> and lewis in philadelphia. you're on the air. hello, lewis. go ahead, please. all right. we're going to move on. sorry about that. when we call you, i know you're listening to the screen, but be go with your question, please. we're going to learn about the next part of it, which is getting to a majority. and we're going to return to the library of congress, ryan reft, showing justice powell's difficulty in getting to a majority. from our william j. brennan paper. he was seen as marshal's kind of -- marshall's kind of liberal ally. 40-pagepart of a larger
memo written to his clerks for typing up later in which he various avenues and curves in the case and particularly the fact that particularly offended by lewis powell's draft opinion from marshall's point of view. failed to acknowledge the larger structural inequalities that had been established, that can pass laws in passing civil rights laws and not changing the underlying but if all you're doing is not changing the underlying structure, then you are reasserting the same structural inequalities that have negated african-american progress. for justice powell, if you turn to the letter he wrote on june 27th 1978, 1 day before they announced his opinion, this letter is an attempt to try and cobble together one or two more opinions inside. i think he knows it is unlikely to work out, particularly at this 11th hour as he is putting out this memo.
in a memo he is quoted as saying " "as i am a chief with no indians, i should be in the rear rank, not upfront." ironically, his opinion, despite the fact that it had no other fully co-signed justices on it, is the one that persists for the rest of the century. susan: so we are going to look at how that decision turned out. it was in fact split on the two questions. affirmative action was constitutional, that was the majority of the justices' view. on the question of whether or not the uc davis program was constitutional, it was no. powell, berger, stewart, rehnquist, stevens. there were also five concurrences and dissents, soy
it was a very complicated outcome. i want to go through this because time is getting short. we will hear some excerpts and talk about what it means. first of all, on question one, is race-based admission constitutional? this was 5-4, regarding that question. here is an excerpt from justice powell's majority opinion. >> the court affirms the constitutional power of federal and state governments to act affirmatively to achieve equal opportunity for all. government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities prejudicesial ." here is stevens' dissent. " it is therefore perfectly clear that the question whether race can ever be used as a factor in admissions discussion of that issue is inappropriate, the meaning of the title vi ban on exclusion is crystal clear: race cannot be the basis of excluding anyone from a federally-funded program." let us talk about the opinions on that question. what should people take away from that? >> there were two issues, the
principal one was the constitutional issue, but there was also a statutory issue as well. there were some justices, for, it turns out, who would have preferred to decide on statutory grounds, on title vi grounds, rather than constitutional. there was an issue as to whether an individual could assert collective action under title vi. it bothered some of the justices. i think it was stuart whom it bothered the most. at any rate, as you say, the powell, siding with the four more liberal justices did reach the constitutional question and affirmative action was upheld. but it was upheld in a way that would have to avoid quotas, whatever that might be. that was the dance that we have been engaged in ever since then. when is something a quota and when is it a goal? or something other than a quota? put usn this case it but in that situation. >> may be we could back up a bit
and talk about -- there are nine justices in the court and at the end of an oral argument like a none will later, the go and meet in the conference room. nobody else is there except for the nine justices. they will go around the table and say how they tentatively vote on the case. ordinarily it is a decision, some people in the majority and some in the dissent. sometimes it is unanimous, often times, that they all agree. but sometimes, with a nine-member body, weird things happen. select this case, you have four justices, who say that affirmative action violates the statute. four justices who say that affirmative action is totally cool. one saying that it is only kind of cool. it is that one justice's opinion that actually controls the court, because it is the narrowest grounds of decision on which a majority agrees. so here, that never decision or -- the narrow decision or the narrow rationale was by justice powell. yes, he only got one vote, but
boy, was it an influential vote? sometimes you're the only justice, but if you say something right, and ultimately takes off. justice scalia did it during the independent counsel act. justice rehnquist did it on the federalism issue in the 1970's. here, you have justice powell doing it. he said something that spoke to the lived experience in universities and administrators picked up on that and understood what it meant. randy: there is one twist, justice blackmun was having prostate surgery. he was at the mayo clinic in minnesota and was not present for the conference, the first conference. and they did not know how this case was going to come out until he was able to give an opinion. and even when he first got back in the beginning, he did not want to give an opinion. and it was finally the chief justice who had to go into his chambers and say, are you ready to vote yet? he said, not yet. but eventually, he did. to the surprise of some members of the court, he did side with the liberal side of the court.
let's move onto the second question which is about the university of california's quota-based affirmative action, system, finding that it was not constitutional. there was a 5-4 decision, again. here is an excerpt from justice powell's majority opinion on question two. " the special administration program is undeniably a classification based on race and ethnic background. the guarantee of equal protection cannot mean one thing when applied to one individual, and something else when applied to a person of another color. if both are not accorded the same protection, then it is not equal." and from justice marshall's dissent, he writes "it is more than a little ironic that after years of discrimination against negroes, the court is unwilling to hold that a class-based remedy for that discrimination is permissible." comments? randy: this remedial view does view of affirmative action does not command the majority of the court, despite justice marshall's passion on the issue.
so as a result, justice powell's decision, which says no quotas, but you can engage in diversity-based affirmative action, which looks at the whole person and allows every person to compete for every slot. that is ok. that was ok. neal: what was wrong with the university of california system, was that a told people, 16 out of 100 slots, you cannot apply if you are a caucasian. you don't even get to think about it. that is what justice powell said was wrong. and i think that is where the country was and is today. randy justice marshall's view : that you just quoted represents one side of two different versions on discrimination and race which separate the court even today. this is a way that i teach these sensitive cases area on the one hand, you have justice marshall and the liberals today on the who say that what is banned by the 14th amendment is invidious discrimination. discrimination that is actually aimed at the meaning,
undermining or subordinating one group of people. what is not banned by the 14th amendment is what is called benign discrimination, discrimination that is set to help. on the other side of the court, is the view that the use of race in classifications other than to remedy violations by the party before the court, the use of race is so insidious it should simply not be used as a classification at all. and even if you think you are using it benignly, you may not actually be using it like that. that is the divide that separated the court then, and i think it separates the court today. susan: here is a comment on twitter. when the interpretation of the 14th amendment is overly broad, and operates against those who suffered past harms and abuses, it was intended as a remedy in the reconstruction amendments for race-based enslavement. let us listen to what the
students and the university community, how they reacted. this is from a cbs documentary on the case. >> i consider it a victory. not only for the university of california, but for minorities, for social justice and hire a dictation. >> but others disagree. several minority students at the davis medical school, called the ruling a slap on the face. saying, the struggle for equal rights was being undermined. took you 200 years to build a house and someone came along with a match to build the house down, how would you feel about that? >> another med student said he felt pretty good. >> i am pleased because it was a -- it struck down a program -- it hadel is very questionable criteria involved. it was explicitly preventing white students from applying to the program. susan: we will look at what some of the nationals are reporting -- some of the national
reporting on it was. the los angeles times, one of the major newspapers in the country, "bakke wins when the justices uphold affirmative action." what was happening in the country, with people on the edge of their seats waiting for this decision to come out? was it seen as important at its time? >> it was one of the big hot button issues. randy: in some respects, i think it was bigger than roe v. wade. abortion became a huge political wade, andr roe versus partly as a result of that decision, but it did not build up to that decision. everybody was ready for a big decision with that case, and they were disappointed. now, they were going to get it. it was a subject of huge controversy. this was perhaps, at this point in history, perhaps the most publicly debated and protested outside the supreme court, decision that it happened up until that point. susan: in our final segment, we will look at the legacy of the
case. but first, some phone calls. i will go to iowa. josh, i think we have had you with us throughout the whole series. great to have you in the audience. what is your question about tonight's case? >> thank you. my question tonight is about thurgood marshall and how influential he was in this decision, and how influential he was on the supreme court in general? >> on this decision, he obviously, lost. the remedial, broad view of affirmative action did not prevail. i think justice marshall as a justice, it was maybe not as i think as a justice, he may be was not as successful as the others. there is a the number of reasons why that could be, including the fact that president nixon had so many appointments, as did president reagan. so there was a bunch of things going into that. but i think it is fair to say that his legacy as a justice was not quite the legacy of a litigator, although that is pretty much a totally unfair standard, since you are talking about if not the greatest litigator in the united states history, the second greatest
litigator. >> in this case, justice marshall greatly influenced justice brennan on this question. then it was justice brennan who did the politicking. and it took a lot of work on justice brennan's part to get the four vote block. he did that in a sense, for thurgood. that is how they referred to each other. so, justice marshall's influence was felt in this case as well. susan: michael in san diego you are on the air. michael: yes, i was a student at ucsd in 1975, i was a medical corpsman in the u.s. navy with the marines overseas. i fought for this country and back, i wanted to pursue a medicine career. and i was denied. i was denied my right that i fought for, to go ahead and become a physician. i will be retiring from the school district next year, i
decision. the wall street journal called everybodyion that wants. the new york times called it the decision that pleased all broad spectrum of people on opposite sides of the issue. i think that was the needle that justice all threaded for the court. >> let us listen to what happened after bakke, what happened to him. >> the public knows little about him, and that is because he was to remain as unknown as possible. in what is believed to be his interview ever, we spoke about first the decision and about his penchant for privacy. >> i am pleased with the decision, and that is all i
intend to comment about it. >> why haven't you spoke out before? >> it is my personal preference not to speak publicly about the case. i like to keep my private life private. >> but it is not a private matter when it goes to the u.s. supreme court? >> my own personal life is private and i intend to keep it that way. >> do you plan to go to medical school? >> yes, i do plan to go in the fall. >> on another note, an update from the university of california davis. 97 medical students graduated from there today, including allan bakke, who challenge the university's racial quota system. he had charged that he was denied admission in favor of minorities who scored lower on the entry exam. ultimately the supreme court ruled in his favor. he began serving his residency at the mayo clinic in july. susan: as you heard, he became a doctor at the mayo clinic and worked many years as an anesthesiologist in minnesota. he retired about a decade ago and moved on to medical devices as a business venture.
and i'll tell you, his hesitancy to talk continues to this day. we worked very hard for him to give us one interview about what it is like to be an individual citizen appealing to the supreme court. he very kindly said he would retain his privacy in this case. one of the things i wanted to ask you both about -- i should add one thing, in a later case, the university of california paid him more than $100,000 for his legal expenses. throughout both series one and series 2, there are these wonderful examples of everyday citizens, who use our system to get their case heard before the court. as we close out the series, would you both talk about our system? how it allows the redress of grievances for people without special privilege among us? it does so as, and lot today, because you can actually get a lot of free representation, if you have a constitutional challenge that other people are prepared to
support. medical marijuana case that led to gonzales versus rich, took the exact opposite approach to allan bakke. my clients did. i really admire dr. bakke's refusal to allow his private a matter of public record, i think it is quite admirable. i also think it is quite admirable that angel used the platform of our lawsuit to make medical marijuana a national issue. when i first started litigating in that area in the 1990's, it was considered a crank, crazy, fringe issue. when i told people what i was doing, they said that to me. by the time we had a decision in the supreme court in 2005, it was a relatively mainstream position and much to my surprise, many states continue to recognize medical marijuana, in part because of the legitimacy that our case gave the issue, and in large part because of the effort that angel did, she is that platform doing television show after television show, interview after interview, to raise the profile of the issue, and to really change the politics of medical marijuana in this country. that is what one person was able
to do in a single lawsuit. neal: i have a similar story. my first argument was a guantanamo case, in which i represented bin laden's driver. i was sitting in the courtroom, the 28 2006, when decision came down, that the guantanamo trials were unconstitutional. we worked out and the press were waiting and asked, what does the decision mean? here is what i said, almost verbatim, here is what happened today. you have a man the lowest of the low. here is what happened today. nation's most powerful man, the president of the united states, and he won. that is what is great about this system. in many other countries, this man would have been shot for doing something like that but . but that is what makes america special. our founders laced in checks and balances.
theoesn't matter if you are little guy, you can go after the big guy in the court. and if you have a good argument, you can win. susan: let's listen to mark in sanford, maine. mark: hi,, good evening. mark: good evening. i read the case brief and i was impressed with the split decision. i kind of understood it, but mr. bakke got his point across so they agreed with him. because, his scores were higher than any of the minority students that were picked. so i think it worked out for the best. as far as the affirmative-action goes, i was wondering if the attorneys could explain to me the difference between public school and private, where state action would be for public and private would not have the constitutional provisions? can you explain a little bit about this?
neal: it is a good question. in general, the constitutional does not bind private individuals, private actors. you need to be what is called a "state actor." there are a couple exceptions, like slavery. but for the most part, that is what it is. so, no matter how discriminatory i am as a private citizen, i cannot violate the equal protection clause, but, i can violate title vi, that other, pesky statute we were talking about in the bakke case. it says, if you're a recipient to federal funds, you are bound by certain equality guarantees, which the supreme court in the bakke case it was said they are just like equal protection ones. so for that reason, it does bind private actors too. susan: let's move on to later developments, affirmative action. first of all, california was back at it again with a proposition to the voters in 1996. california proposition 209. the outcome of that by 54-45, it disallowed race being considered at universities.
in admissions. underscoring the decision by the supreme court, was the public. let's move on to the supreme court cases. mr. putnam on twitter asks, how how does the opinion issued in that case leah role in the future of affirmative action cases such as the university of michigan case? here is a full list. there were 2 cases in 2003, then in 2014, there was one case to defend affirmative action. fisher versus university of texas in 2013, and another case by fisher in so, we will have to 2016. wrap them all up into one. we'll start with you, randy. randy: for the purposes of this particular show, that is when the justice powell's rationale contains the majority rationale. in. up until this point, for all those years, between 1977 and
2003, it was just one opinion. but five justices adopted the diversity rationale integrator and gratz, and that became the majority view. so historically with respect to bakke, that is when it comes into play, and we are still talking about diversity today. >> i hold those cases intimately, and i think it is fair to say that in all of them, the litigation strategy was justice powell, just as well, justice powell. -- justice powell, justice powell, justice all. he had forged a smart way of thinking about this that captured and resonated with what the university administrators' , there lived experience had been. you are absolutely right, by the time of the michigan law school diversity becomes the rationale.
susan: there is a case in the courts right now, students for fair admission versus harvard. is that possibly a case you might have a chance to vote on? susan: there is a case working its way through the court students for fair admission , versus harvard. is that possibly a case you he might have a chance to vote on? >> i am not going to talk about that one. randy: >> it is a case in which asian-americans are challenging the admission process at harvard. i think there is another case involving north carolina, perhaps. the issue is whether asian-americans are being discriminated against by the affirmative action programs that are benefiting other minorities. it is very interesting, because, it is one thing to look at allen bakke and say; you're a white male, so you cannot be discriminated against. but there is a good reason to believe that asians are significantly underrepresented,
or perhaps by design, the way that jews were underrepresented by design in the ivy leagues when diversity was first invented as a justification for a kind of discrimination. susan: there is this dichotomy of the court versus society. who influences whom. i want to put a fairly recent public opinion question from gallup in 2016. it was on a university-based affirmative action. 70% of respondents said colleges should admit on merit alone and 26% say race or ethnicity should be considered to boost student diversity. there is the diversity word. we also had that caller that asked about the trump administration. our producer researched and said president himself has not spoken about affirmative action, but you may remember the headlines from the justice department. here is a new york times article
-- justice department to take on affirmative action in college admissions and look for reverse discrimination examples that they might press upon and the future. neal: what i can say about that is that it is such a false dichotomy. where a survey says oh, take on merit or consider race. the whole point of justice powell, his genius was to say, race is a part of merit. you know, as a law professor, i have taught in situations where there are no minorities in the classroom. how do you teach the bernie getz case? it is tough. so the idea that diversity matters to the educational experience, and it is not just politics, religion, geography. the universities that take that mission seriously, are better universities. randy: here is the problem, diversity sometimes is just used as a justification for helping out folks that they think will be more in agreement with them. i would be much more impressed if more schools of higher education put a premium on
intellectual diversity in addition to other forms of diversity than are currently in place. that you have schools don't take the view that neal did when he was chair of the appointments committee in georgetown, that intellectual and political diversity are important. to the contrary, there are an in fact increasing levels of , discrimination against people on the basis of that viewpoint. so, if diversity is the rationale for taking race into account, it ought to be the rationale for taking viewpoint into account as well. and i am sad to say, that largely, it isn't. susan: a viewer says bakke decision was unfortunate to say the least. as a white woman from a working-class background, i was able to earn 2 graduate degrees due to affirmative action. we need more justices like sonia sotomayor who understands how hard some of us out here have to work just to get to the starting line. what do you say to that viewer? randy: that is absolutely right.
that is argument on behalf of affirmative action. then you have the argument from the previous caller that we heard, who served his country, and who got the test scores he got, and was not able to attend medical school. so there is a problem here. and it was actually highlighted in the bakke case itself. there were many, many more people applying for medical and law schools that day, than there were spots. now you have to allocate a scarce resource and somebody gets to go, and somebody doesn't. with part of what randy is saying here. but the idea that just because there have been some mistakes in some universities, that you should take this incredibly important tool off the table, and say that the federal courts are empowered to take it away from universities, i think it is so pernicious and damaging to our educational system. when you have university after university across the country saying, we need this for an effective classroom and learning experience. we have our u.s. military saying it, you have all of our corporate leaders, our ceo
, i think the courts need to stand up and listen to that, as they have. susan: marcelo from new york city, you're on. welcome. marcelo: thank you, this is a very high honor to be able to call into the final program. i have a really quick comment. how come it hasn't been mentioned yet in this case, that the biggest recipients of affirmative action are white women? and another question, where does bakke stand in the constellation of affirmative action case decisions? overruled? where does it stand? thank you. susan: thank you. problemsll, one of the of this whole area has going forward, is a notion of majority versus minority. because we have a country in which white males are not the majority in the country, females actually outnumber males. the more diverse the country becomes demographically, the more difficult it will be to say
exactly who is the majority, and who isn't. then once you have decided that everybody gets a preference, because everybody is a minority, then nobody gets a preference. this is something that will have to be wrestled with in the future. try to dust trying to superimpose our past, where we had decades and decades, centuries of oppression, on the basis of race. where a particular group was actually singled out for enslavement, and then legal subordination for another 100 years, is not necessarily the same as the types of obstacles the many people are facing today, who are one kind of minority or another. susan cole and maybe to that end, jude asks on twitter, when does affirmative action end? neal: justice o'connor said in 2003, maybe it will end in a quarter century. you know, i think it ends when the rationale for it goes away.
and here, you have got, i think, a tremendous record. the university of texas just let put it to the supreme court a couple of years ago saying, not now. right now, we really need it. because without it, you could have what happened in california where without the proposition, you have the proposition, the universities in california became far, far more white and less minority. look, bakke is a complicated decision and these things have really come hard emotional stakes on both sides. justice powell said, sometimes the best decision is a compromise decision, not the extreme on either side. and, you know, in a country that is so devoted right now, i think justice powell's method of listening to both sides, trying to come up with something that gives everyone something, was i think, a really instructive lesson for us all. just out of time.
i would like to thank both of you for being at the table two . terrific guests. on our series "landmark cases." as we have been telling you, this is our final case for the season. as we have been telling you. a couple of thank yous, if you will permit me at the end. veteran supreme court reporter tony moro wrote the book for this series, as he did for season one. also, for the folks at the national constitution center, who are our partners in this series, you can see the people who helped research the cases, and many of the guests, along with the president of the constitutional center, jeff rosen, who was himself a guest in one of our earlier programs. finally, let me show you all the people behind the camera. it takes a lot to put this program together. there you see our team, the technical and editorial team. greg sza with his own studio head and also we work with him on the technical side, nate
>> c-span's original series, humanrk cases, export stories unconstitutional dramas behind some of the most significant and. frequently cited decisions in supreme court history watched season one and season to online at c-span.org/landmarkcases. there, you can order our companion books and download the programs as a podcast. next, a discussion on the congressional agenda with house ryan, california congressman adam schiff, and senator roy blunt of missouri. later, interviews with representatives steny hoyer and sean duffy and arizona senator jeff flake. after that, president trump meets with nato's secretary-general. on thursday, house intelligence committee ranking member adam schiff of california, missouri
senator roy blunt, and house eager paul ryan -- house speaker paul ryan set down to talk about the legislative agenda. this was part of an annual legislative seminar hosted by washington dc law firm, bigger hostettler. this is one hour and 10 minutes. [applause] so, we are going to get started off this morning. there is never not much going on in washington these days. people from around the country