Captions Copyright National cable satellite corp. 2008 would either of your guests argue or say theres legitimacy to that argument that affirmative action per se is a right and my second question is about affirmative action on the federal level, a number of years ago i remembered there was a president ial candidate and one of his big campaign stump lines was the first thing he would do when he took his hand off the bible after he became president was sign an executive order to outlaw all federal affirmative action. Would it be that easy for a President Trump or any president to get rid of affirmative action that way . Thanks very much. Thank you. Let me start with your first question and then, randy, im sure has a lot of thoughts as well. I was involved in that case, the Southern Michigan case that youre talking about. I thought your question was great. It totally summarized exactly the issue which is you have in michigan and california state referendum that ban affirmative action in the university setting. Plaintiffs came in and said, you know, we have a constitutional right affirmative action is constitutionally compelled and you cant get rid of it. As youll hear im a big believer in affirmative action in the University Admissions context but i thought that was a ridiculous argument. The idea once you have affirmative action its there for all time and becomes an embedded right you cant take away even when there isnt a feed f need for it, when bakke was lit gated the former solicitor general ended the brief to the Supreme Court disclaiming any of this saying look, i am not here to say affirmative action is constitutionally compelled, im here to say if a university decides with its leadership to have affirmative action, then absolutely its within their constitutional right to do so, but its also within their constitutional right not to have the program. I dont really have that much to add to it. His second one, the federal level, could a president just with one were learning an awful lot these days and neal could tell us how restrictive executive actions can be. Under the last administration they seemed unrestricted and were finding out wait a second, theres restrictions on what a president can do that we didnt hear about before. Im just curious and want to know from the horses mouth what neal thinks about restrictions on executive actions. I think ive applied the same standard and president obamas executive actions were challenged every day and every week. Its not a new thing were challenging executive power. Thats been challenged a long period of time. I think the president would have latitude to get rid of affirmative action as long as its not there are many statutes that require it and so congress requires it thats one thing, but if its a voluntary decision by one president to have affirmative action i suspect that there will be ways for a future president to get rid of it and may be some settled expectations and government contracts or Something Like, that transition issues, otherwise i would think the president would have such powers. Thats an important point. That is that, you know, the question does a statute give the president the discretion that the president is exercising when he issues an executive order and if the statute doesnt then thats a completely different situation. Nathan is up next in old saber, connecticut, hi. Caller hi. Boy, i didnt expect that answer. Thank you, susan, for this series. Its been very educational. A quick comment and question. My comment i personally support affirmative action because i think we would have had all white Police Departments and all male Fire Departments without it. Now my question is, two of our president s have been adamantly opposed to president kennedy, that was Ronald Reagan and george w. Bush. Has President Trump gone on record regarding affirmative action at all . Not that i know of. Not that i know. Do you have another question besides that . Caller nope, thats it. Thank you. Next is raphael in new york city. Caller great. This is my first time, so thank you very much. I just wanted to tell you, to hear some personal experience. My wife is a physician. She is from queens, from the bronx like sotomayor, but shes latina. The affirmative action the possibility of many minority families to become well off. I tell you that my wife became an obstetrician after going from queens in 1975 to the medical school, threeyear program they had there. She came in 1978, when bakke came about, she went to the hospital where she trained in obgyn. We had three kids. Our first kid decided to become a doctor. Before doing so, you went to the army and he happened to be a bronze honor veteran, but right now because of my wife becoming that doctor, that really motivated my son and after going to war, fighting for america, he came back, went to columbia university, finished his program, then he went to newark and finished medical school. Presently he is a psychiatrist in charge of the air force academy in denver, colorado. So my final comment is that it does contribute to the betterment of a community. So i would just like to share this with you. Thanks for your call and sharing your story. I love your family and, you know, its a my hats off to your wife and son. You know, one of the reasons your question is so great is that actually, you know, picked up on exactly what happened at the oral argument in the case. The university of californias lawyer began his argument with three facts and let me read you his third fact. There is no racially blind method of selection which will enroll today more than a trickle of minority students in the nations colleges and professions, so hes saying look, we need affirmative action because otherwise were going to have almost no one. Then he said almost what you said about your wife and son, quote, yes, its possible for a black to go to the university of innen mn or harvard or yale, i know johnny down the street and sammys father and became a lawyer and johns father became a doctor. Its this idea of role modeling when you see other minorities that are successful you yourself may be more likely to enter professions you thought were closed. But whats interesting is that all of these benefits that have certainly accrued to some beneficiarieses of affirmative action, and i dont know that we can really be sure that this callers family really was benefited by affirmative action, they may have like Justice Sotomayor been admitted anyway, but all of the benefits are irrelevant to the bakke case even though they did come up in oral argument because they were not irrelevant to some of the judges. Some wanted to benefit the case on that kind of benefit. Thurgood marshall. There were not five votes to do that, only four votes to do Something Like that and the fifth vote was diversity. None of those justifications are the constitutionally accepted justifications for affirmative action. Ther as an educational although theyre not completely unmentioned in the opinion, but basically, its does a school have an interest in having a diverse student body in order to enhance its Educational Program and thats where this discussion of diversity has come from. The actual narrow Justice Powell opinion for a long time was only Justice Powells opinion and now represents a majority of the court. Louis in fresno, california, youre up next. Caller okay. I lived through 1978 and i had even at that time a 98 in physics on the College Admissions test and in 1985 i retook the test and i scored a 99. 9 in physics and 98 in biology and matt mattics and like subjects, but my question is how did the case get to the u. S. Supreme court when it was going to so adversely affect very deserving students throughout the entire nation . I had served in the air force and later i served in the army reserve and the California AirNational Guard and i did my best and i had friends from every possible race in the nation and we were all treated equally, but when it came to test scoring if you had the money to pay for test centers you could raise your scores to 99. 9 across the board. I would have done it if i had the money. I was happy with physics. I would have gone beyond that if it hadnt been for bakke winning what he won in the case. It was enough to affect all the undergraduates that were wanting to apply to medical school. How did it affect him . What happened to you . Did you go to medical school . Caller i went to pueblo medical school in mexico, which was very nice of them, but i couldnt be a and thats what i was being required at the time. My uncle, many of my uncles and cousins fight for the United States and they served in the United States military and they louis. Im going to jump in. Thank you for your own experience. Im not sure if we can process anything there that will help us understand the case any better. Let me move on. Thank you for your call and having lived through that time and actually applied to medical school. So heres what the court looked like in 1978. The newest justice was a ford appointee, stevens, nixon were burger, blackman, powell and rehnquist. Earlier johnson appointees, thurgood marshall, kennedy appointee, was byron white and two eisenhower appointees brennan and stewart. This was the ninth year with Warren Berger as the chief justice. Anything notable about the berger court in terms of its racial decisions and things involving minorities . As neal alluded to president nixon made a number of appointments to the court and the court substantial changed from the warren court, whiches of what we might call a Progressive Court to a conservative court, a court not rigidly conservative but a pull back from the warren court. It is quite significant. I think we would associate the position of the four justices who were aligned with Justice Marshal in this case with what the warren court would have been expected to do. Because we are now in the berger court, thats not what we get. We dont we also dont get a complete of affirmative action for this court. What we get is the middle ground that Justice Powell represented that sort of characteristic of the middle ground you ultimately got from the berger court. And i think when you think about the Supreme Court when you study it, you think its not you cant just study one case, bakke, and say oh, snapshot 1978 and now we can figure it out reading the briefs. What is the court thinking about at the time . Also to your question earlier about the 1974 case they got rid of. The year before the court decided something incredibly momentous, roe versus wade, 7 to 2 decision and people took to the streets and they obviously put their thumb on one side of that scale. Is it any surprise that the next year after roe they dont want to necessarily jump into affirmative action in a way with the case. Now four years have passed, bakke, but still, i mean the court is defined in the public eye by abortion and by really a strong decision and so, you know, its not all that surprising at the end of the day that the court lands in the bakke case where they do with the kind of middle of the road compromised position as randy was saying. Its not one that gives all of the rationales of affirmative action about making up for societal discrimination or role models or anything like that, its a much narrower rationale. So you earlier told us about the writ commonly referred to as granting sert. The university of california filed for sert in december of 1976 and we will return to the lie brar rf Congress Library of congress for an interesting look at how the court works. This is a vote sheet from Harry Blackmuns papers how they managed to get enough votes to move the case forward. This document is a docket from the Harry Blackmun papers. What it does, it tells you when the case was argued, when it was voted on and when it was announced. Any time you want a case to be heard by the Supreme Court, you have to file a sert memo. Often those memos are reviewed by clerks who then kick their opinions on to the justice who then makes a decision to vote yea or nay to deny or grant the hearing. You will notice there is a 54 split to vote for certification. The liberal justices, particularly brennan and marshal, were worried a negative decision or what they perceived as a negative decision would not align with the Juris Prudence they believe was correct and just, meaning they worried that a negative opinion would diminish civil rights policies, hurt affirmative action, and really undermine what marshals main kind of worry was that yes, youve passed laws to kind of address these injustices but you havent gotten at the underlying infrastructure thats created them and what he saw as inequality. The conservative justices, more concerned with the kind of liberty issue, they are all ready to hear this case because it does align with the Juris Prudence they believe is just. So it actually was three times that the Court Considered before they had enough votes to grant the case sert and move it forward. What did you learn from that . Are you familiar with that wrangling that goes on behind the scenes . Shoe absolutely. As a law clerk you dont get to see it. You hear a little bit about it. Certainly as a litigant before the court you are trying to understand that process as best you can from the outside. Its very interesting about that tally sheet is, normally today in the modern Supreme Court, the people who grant a vote vote to grant to hear a case are the people who think the decision in the court below was wrong. Here, the decision was in favor of bakke, but the people who voted according to your the tally sheets you saw were actually the people who thought the decision below was right. It was the liberals on the court acting defensively saying we dont want to hear the university of californias petition, dont hear it, go away, because if you hear it whats the law in california and now might be the law nationwide, no affirmative action. It was a very interesting thing. It is the case that the court will often relist, you know, and discuss things at another conference. It will come up for rediscussion week after week. Indeed now the last several years, the Supreme Court moved to almost a rule. One follow up before your comment at the same time civil rights organizations were really petitioning and urging the court not to take up the case because they were afraid the outcome would be affirmative action policies across the land. How political is the court in that case . How influence ready they by outside pressure . I dont think its right to think of the court as political. I mean once you get on the court and this is true for justices appointed by republican president s and democratic president s, they are justices and they will vote against their president , you know, rehnquist was put on the court by nixon, voted against nixon, kagan put on the court by obama voted against part of obamas health care plan. Theres all sorts of examples, breyer voting against clinton. I dont think theyre political in that sense if thats what you mean. I think they do think about, you know, should we get into a case, is the country ready for a decision, have have all of the issues in the lower courts and is this the right time. Heres something that hasnt come out yet. It takes four votes to grant cert but five to win the case. Four justice who could get the court to hear the case have to count to five or theyre not going to vote for sert. I think the problem here for the liberal justices they had a hard time figuring out how to get to five and didnt want to hear the case. We had the same thing with the Second Amendment right to keep and bear arms. The nra did not want that to go to the Supreme Court because they werent sure that they could get an outcome they wanted and didnt want a bad outcome that would be national, so they tried to undercut challenges to the court including the heller case as best they could. It was an independent group of People Associated which the Cato Institute it wasnt the Cato Institute that did it, but People Associated with the Cato Institute who brought the suit over the objection of the nra who tried to subvert it for the same reason, they were afraid of an adverse ruling that would nationalize a bad rule on the Second Amendment . Were going to listen to the oral arguments. A reminder of what the two major questions were before the court. First is race based affirmative action constitutional . Secondly is the university of californias quota based affirmative action constitutional . So lets hear coxs arguments held on october 12th, 1977, there were two hours of arguments, which is a little longer than usual. Normally now its one. To we know why there were two hours in this case . Sometimes theyll expand argument. Ive had that happen in major cases in which they want more and here we knew there could be three litigants not two because of the United States solicitor general who appears in one third of all arguments but this was an important one. Archibald cox was a famous harvard law professor, after he retired joined the faculty as an emeritus at Boston University next to mine. I heard that voice occasionally coming from his office. He was well known and hes best known to the general public for having been the special prosecutor who was appointed to investigate watergate and eventually was fired by robert. The Nixon Administration that nixon himself had made. And then he was eventually replaced by a different special prosecutor but that made arch bald cox at that point somewhat obscure harvard law professor to the general public a household name. And might become a household name again. Were going to listen in as he makes some of his arguments before the court in regents versus bakke. The objective that impress es itself on my mind partly because taken lowry testified it and partly because i am at least in part an educator, the importance of including young men and women at both graduate colleges and the medical schools so that the other younger boys and girls may say, yes, it is possible for a black to go to university of minnesota or to go to harvard or yale. This is essential if we are ever going to give true equality in a factual sense to people because the existence or nonexistence of opportunity, and surely we all know, shapes peoples aspirations when theyre very young. Mr. Cox, what if Davis Medical School had decided that since the population of doctors in the among the minority population of doctors in california was so small, instead of setting aside 16 seats for minority doctors, they would set aside 50 seats until that balance were redressed an the minority population of doctors equalled that of the population as a whole, would that be any more infirm than the program that davis has . Well, i think my answer is this, there is no reason to condemn a program because of the particular number chosen. What do you think of his argument . I like that. I think my answer is this, it sounds like he was thinking about what his answer was when he said that and i was struck by the argument, i listened to the whole argument in preparation for this show and i was struck by how the justices let him talk without interruption for great expanses of time. They treated him the way the solicitor general is often treated in oral argument. Not anymore. Very deferential, as opposed to his opponent who was peppered quite heavily with questions. You heard that long excerpt. Well thats a long excerpt. You dont hear that much anymore. If at the beginning or end of argument you dont hear any advocate in