It had been heralded as the most important civil rights case since Brown vs. Board of Education, the 1954 ruling that outlawed racial segregation in the schools and ultimately in all of American life. The nation had moved far in 25 years, but the goal of equality had remained elusive, and the question now before the Supreme Court in the case of Regents of the University of California vs. Bakke seemed infinitely perplexing: Is it fair to give some preference to blacks over whites in order to remedy the evils of past discrimination?
Split almost exactly down the middle, the Supreme Court last week offered a Solomonic compromise. It said that rigid quotas based solely on race were forbidden, but it also said that race might legitimately be an element in judging students for admission to universities. It thus approved the principle of "affirmative action," the system by which the Government is pressuring U.S. universities, corporations and other institutions to provide more jobs and better pay for millions of blacks, other minorities and women. Despite a flurry of protest demonstrations by militants, most observers praised the court for a cautious but astute effort at reconciling conflicting forces—but they also foresaw many future conflicts in the actual carrying out of the court's new edict.
The momentous decision came quietly, for it is never known exactly when the court will hand down an historic ruling. One traditional clue, though, is the appearance of the Justices' wives, so there was a rustle of anticipation in the crowded courtroom just before 10 last Wednesday morning at the sight of Cecelia Marshall, Marjorie Brennan, Mary Ann Stewart and Elizabeth Stevens. The wives had arrived.
At exactly 10, Chief Justice Warren Burger stepped from behind the red velvet curtains and entered the courtroom. Eight other black-robed Supreme Court Justices followed as the marshal of the court sang out: "Oyez, oyez, oyez!" and invoked the blessing of God on the "United States and this honorable court." The Justices seemed more solemn than usual.
Burger began by asking Potter Stewart to announce a routine decision on a pensions benefit case, then announced a minor decision himself. Finally it came, third on the list: Case No. 76-811. Regents of the University of California vs. Bakke. As a hush enveloped the courtroom, Associate Justice Lewis Powell, a frail, bespectacled Virginian, began to speak in an emotionless monotone: "Perhaps no case in my memory has had so much media coverage. We speak today with a notable lack of unanimity. I will try to explain how we divided."