Did Lewis Powell Sign a Slow Death Warrant for Affirmative Action?

In the spring of 1977, Charles Ogletree, a law student at Harvard, asked for a meeting with a professor, Archibald Cox, who was preparing to defend affirmative action before the Supreme Court. Ogletree hadn’t taken a class with Cox. But as the national chairman of the Black Law Students Association, he wanted to explain how much the case, Regents of the University of California v. Bakke, meant to students like him.

Bakke was shaping up to be a blockbuster. If Cox lost, Ogletree feared that the next generation of students of color would no longer have meaningful access to schools like Harvard and public universities, which were finally open to them after centuries of near total exclusion.

Later, Ogletree wondered at his own temerity. More than any other faculty member, Cox had a towering reputation. He was famous — real-world famous. As the solicitor general appointed by John F. Kennedy, he argued crucial civil rights cases and had a hand in drafting the Voting Rights Act of 1965, a crowning achievement of the civil rights movement. Then in 1973, Cox served as the Watergate special prosecutor. He demanded the tapes from Richard M. Nixon’s White House, forcing a generation-defining showdown over the rule of law. When Cox refused to back down, Nixon ordered his attorney general, Elliot Richardson, to fire him. Richardson and the deputy attorney general, William Ruckelshaus, resigned rather than carry out Nixon’s order. That evening, Robert Bork, third in line at the Justice Department, fired Cox. The events, known as the Saturday Night Massacre, eventually helped lead to Nixon’s downfall.

Shy since childhood and deeply serious, Cox sometimes came across to students as curt and aloof. But he listened to Ogletree intently at their meeting, taking notes on his “legendary yellow pad,” as Ogletree, who would become a celebrated Harvard law professor himself, wrote in 2004 in The Harvard Law Review.

Cox’s challenge at the Supreme Court, as the lawyer for the University of California system, was to defend an admissions program at the medical school at U.C. Davis, which effectively reserved 16 of 100 spots for Black, Latino, Asian American and Native American applicants. Allan Bakke sued after being rejected from the medical school two years in a row. “I am a 33-year-old ex-Marine with a master’s degree in engineering, a very strong academic record and excellent (97th percentile in science) Medical College Admission Test scores,” Bakke, who was white, wrote in making a civil rights complaint. “I want to study medicine more than anything else in the world.” He argued that “reverse discrimination is as wrong as the primary variety it seeks to correct.”

Cox worked on his defense of the U.C. Davis admissions program for months, in an office hidden away on one of the upper levels of the Harvard law library. Each day, his secretary brought him a pot of tea and two Pepperidge Farm cookies on a porcelain dish. He and Ogletree kept talking. “It was quite an experience to see his craftsmanship as he tried to draft a brief that would simultaneously support the university’s program and persuade a Supreme Court that was increasingly conservative, particularly on matters of race,” Ogletree later remembered in 2004.

A backlash to the civil rights era was underway, and the justices were a focal point. In the weeks leading up to the argument in the Bakke case that fall, crowds of protesters gathered in Washington, demonstrating for and against affirmative action. Bakke was poised to be the court’s most important ruling on race since its order to desegregate public schools in Brown v. Board of Education in 1954. The case attracted about 60 friend-of-the-court briefs, a record at the time. On the day of the argument, Oct. 12, 1977, nearly 400 people stood in line for a seat, some carrying sleeping bags they had used while waiting through the night. Inside, some Black members of Congress, who as a group totaled only 17, took their seats in the audience.