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April 14, 2008


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Eric Muller

Kathleen, I think that Grutter complicates the picture more than your comment in the last paragraph of your post would suggest.

What's significant about Grutter is not simply the fact that O'Connor voted to uphold the AA plan, but also her *language*. In the context of evaluating the law school's claimed compelling interest in diversity, she openly speaks the language of deference: "The Law School's educational judgment that such diversity is essential to its education mission is one to which we defer."

And one can't really hold Adarand up as a clear contrast to that, because the Court did not actually do strict scrutiny review in that case; it remanded for application of strict scrutiny. So O'Connor really didn't say anything in Adarand that reveals how tough she'd be under strict scrutiny in examining (or deferring to) a state's depiction of its compelling interests.

So while I think the question you raise is quite interesting, I also think you may be slightly overcharacterizing Justice O'Connor's hostility to deference.

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