Rhetorical Contingency and Affirmative Action: The Paths to Diversity in Regents of the University of California v. Bakke

Abstract

In Regents of the University of California v. Bakke (1978), the Supreme Court issued a landmark decision addressing the constitutionality of university affirmative action policies. Justice Lewis F. Powell Jr. concluded that universities could consider race as a factor to achieve the goal of a diverse student body. This study situates Bakke within its broader rhetorical environment of public discourses about race, law, and education, examining the selection process by which Powell found “diversity” to be the most justifiable answer to the question of affirmative action's permissibility. Using materials retrieved from Powell's archives at Washington and Lee University, including memoranda, personal notes, and draft opinions, the project makes three interrelated arguments. First, this study asserts that the Supreme Court is a rhetorical institution, dependent upon rhetoric for its inventional needs and its credibility while simultaneously cloaking its reliance on rhetorical invention in a rhetoric of formalistic inevitability. As such, it attends to how the legal invention process, explicated by classical rhetorical theorists and manifest in contemporary legal practice, enhances understanding of Powell's decision. Second, the project examines how Powell pulled from far-reaching rhetorical and ideological environments for his “diversity” rationale. Here, the study traces public discourses about race and examines Bakke's legal briefs, outlining the appeals to multiculturalism, colorblindness, race consciousness, and individualism that comprised Powell's inventional warehouse. A critical scrutiny of Powell's opinion-writing process reveals an inventional program guided by an ideological negotiation of these competing and compelling rhetorics of race and education in the United States. Third, this project argues that Powell's opinion-writing process is a corporate, rather than individual, process. Examining the negotiations between Powell, his law clerks, and fellow justices further illuminates the rhetorical nature of the Court, as well as the ideological influences upon individual Court opinions. The study concludes by explicating how Bakke reflects the ways that the Supreme Court works as part of a broader rhetorical culture, constructing its decisions from the materials of public arguments and the architecture of jurisprudential norms. Finally, the study explores the ideological circulation of Powell's decision: divorcing the goal of diversity from the justification of past discrimination.