1126 ★ CHAPTER 28 A New Century and New Crises
In two cases arising from challenges to the admissions policies of the Uni-
versity of Michigan, the Supreme Court issued its most important rulings on
affirmative action since the Bakke case twenty- five years earlier. A 5-4 majority
upheld the right of colleges and universities to take race into account in admis-
sions decisions. Writing for the majority, Justice Sandra Day O’Connor argued
that such institutions have a legitimate interest in creating a “diverse” student
body to enhance education. O’Connor was strongly influenced by briefs filed
by corporate executives and retired military officers. In today’s world, they
argued, the United States cannot compete in the global economy or maintain
effective armed services without drawing its college- trained business and mili-
tary leaders from a wide variety of racial and ethnic backgrounds.
In the second decision, in Lawrence v. Texas, a 6-3 majority declared uncon-
stitutional a Texas law making homosexual acts a crime. The majority opinion
overturned the Court’s 1986 ruling in Bowers v. Hardwick, which had upheld
a similar Georgia law. The Lawrence decision paved the way for an even more
momentous Supreme Court ruling in 2015, in Obergefell v. Hodges, which over-
turned state laws barring marriages for same- sex couples. Public opinion on
this question had evolved with remarkable rapidity, especially among younger
Americans. In 2003, two- thirds of Americans opposed legalizing such mar-
riages; by the time of the 2015 ruling, over 60 percent were in favor.
Both decisions relating to gay Americans, written by Justice Anthony Ken-
nedy, repudiated the conservative view that constitutional interpretation must
rest either on the “original intent” of the founders and authors of constitutional
amendments or on a narrow reading of the document’s text. Instead, Kennedy,
generally a conservative, reaffirmed the liberal view of the Constitution as a
living document whose protections expand as society changes. “The nature of
injustice is such,” he wrote in Obergefell, “that we may not always see it in our
own times. The generations that wrote and ratified the Bill of Rights and the
Fourteenth Amendment did not presume to know the extent of freedom in all
of its dimensions, and so they entrusted to future generations a charter protect-
ing the right of all persons to enjoy liberty as we learn its meaning.”
The Court and the President
Nor did the Supreme Court prove receptive to President Bush’s claim of author-
ity to disregard laws and treaties and to suspend constitutional protections of
individual liberties. In a series of decisions, the Court reaffirmed the rule of law
both for American citizens and for foreigners held prisoner by the United States.
In Hamdi v. Rumsfeld, in 2004, the Court considered the lawsuit of Yasir
Hamdi, an American citizen who had moved to Saudi Arabia and been captured
in Afghanistan. Hamdi was imprisoned in a military jail in South Carolina