Constitutional Sunsetting?: Justice O\u27Connor\u27s Closing Comments on Grutter

Most Supreme Court watchers were unsurprised that Justice Sandra Day O\u27Connor\u27s vote proved pivotal in resolving the University of Michigan affirmative action cases; indeed, Justice O\u27Connor has been in the majority in almost every case involving race over the past decade, and was in the majority in each and every one of the 5-4 decisions the Court handed down across a broad range of difficult issues last Term. Some smaller number of observers were unsurprised that Justice O\u27Connor decided (along with the four Justices who in the past have voted to allow latitude with regard to race-based affirmative action programs) to uphold the kind of flexible and individualistic use of race to promote a diverse student body embodied in the University of Michigan Law School\u27s admissions policy. Justice O\u27Connor had often cited Justice Powell\u27s opinion in Bakke favorably, and just two terms ago she had voted with the more liberal Justices in a 5-4 decision that permitted race consciousness in a voting redistricting setting. But perhaps most were surprised by a comment Justice O\u27Connor made for the Court at the end of the Grutter opinion: We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. In this short essay, we explore that provocative sentence, and tease out some of the doctrinal and jurisprudential implications and connections that it might be understood to raise