It was 25 years ago that the Supreme Court set forth its muddled guidelines for affirmative action in higher education in the case of University of California Regents v. Bakke. There, the Court said that race could be a factor in admissions to public universities but that quotas were unconstitutional; confusion over just what that decision meant lead us to the cases decided yesterday. The dual decisions in Grutter v. Bollinger and Gratz v. Bollinger don’t entirely clear up the confusion. Not to worry, however: Justice O’Connor, the swing voter who created this new Court carfuffle, tells us that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Justice Scalia issued one of his classic dissents. Wrote the Great Scalia: “Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state educational institutions are OK, today’s Grutter-Gratz split double header seems perversely designed to prolong the controversy and the litigation.”

Future lawsuits, Justice Scalia ponders, might involve: “whether the particular discriminatory scheme in question contains enough evaluation of the applicant ‘as an individual,'” “whether a university has gone beyond the bounds of a ‘good faith effort’ and has so zealously pursued its ‘critical mass’ as to make it an unconstitutional de facto quota system,” and “whether, in the particular setting at issue, any educational benefits flow from racial diversity.”

Such will be the stuff of the affirmative action debate over the next 25 years. And to what end does the Court undertake such contortions of the Constitution? As Justice Thomas points out in his dissent to Grutter, “The Law School adamantly disclaims any race-neutral alternative that would reduce ‘academic exclusivity.'” Therefore, according to Justice Thomas, “the Court upholds the use of racial discrimination as a tool to…[offer] a marginally superior education while maintaining an elite institution.” As Justice Scalia adds in his own dissent, “If this is a compelling state interest, everything is.”

Justice Scalia, for his part, dismisses the argument that diversity teaches people to get along with those of other races by saying that such things are usually “learned by…people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School.” Justice Thomas confronts the central idea that affirmative action aids blacks by quoting a passage from Frederick Douglass’s speech at Boston, “What the Black Man Wants,” where Douglass addresses the well-intentioned of his day as follows: “The American people have always been anxious to know what they shall do with us…I have had but one answer from the beginning. Do nothing with us!…And if the negro cannot stand on his own legs, let him fall.”

Concluded Justice Thomas: “It has been nearly 140 years since Frederick Douglass asked the intellectual ancestors of the Law School to ‘[d]o nothing with us!’ and the Nation adopted the Fourteenth Amendment. Now we must wait another 25 years to see this principle of equality vindicated.”