The arguments to the Supreme Court in the Bakke case prove one thing for sure. That is how ill-fitted judges and lawyers are to decide issues of basic social policy.
The case itself was not representative of the serious problems confronting the country in the matter of race and education. The questions posed by Justices of the Supreme Court raised doubts as to whether they had a good grip on the issues, and exaggerated the specious importance of legal expertise.
Allan Bakke, in the event there is anybody who does not know, is a 37-year-old engineer who decided to become a doctor. He was rejected in 1972 and again in 1973 when he applied to the University of California of Davis.
The medical school there has a policy that reserves 16 of the 100 places in each entering class for minority groups. Bakke, though he did not do brilliantly in the qualifying examinations, did better than some of the 16 minority students accepted. He sued on the ground that his rejection was a denial of the equal rights guaranteed him by the 14th Amendment.
No doubt there is a point at which efforts to rig the education system in favor of disadvantaged minorities works to penalize whites in a way that harms American society as a whole. But that point is not reached by denying a 30th engineer of mediocre qualifications the right to enter medical school.
Under a less explicit admissions system, Bakke might well have been rejected for age or other reasons. What happened to him simply ought not to be a federal case - let alone one testing far-reaching issues.
Nor should such issues be importantly subject to the chances that determine access to top-flight lawyers. As it happens, however, the best law schools and law firms have long felt guilty about treatment of minorities.
So the University of California, arguing the right to apply racial considerations in addmissions policy, commanded the best legal talent in the country - Archibald Cox of Harvard, the distinguished former solicitor general and Watergate prosecutor who is probably more at home in the Supreme Court than any of the Justices. Bakke's case, asserting that racial considerations should not be applied, was argued by a trial lawyer from San Francisco, clearly unfamiliar with the Supreme Court.
The difference in the calibre of the lawyers was magnified by the calibre of the questions posed by the Justices. For example, in what many considered a key question. Byron White asked Bakke's lawyer, Reynold Colvin, whether the university did not have the right to apply racial classifications in admissions provided there was a compelling interest in achieving a better balance and "no alternatives" to reach that goal.
"We don't disagree," Colvin replied, in effect conceding the point, and making it seem that he was demanding an absolute right for his client. But a better answer is that there are alternate ways to promote a better racial balance - ways that have not been explored by the universities because they have hooked themselves on easier admission for minorities.
At another point Cox was asked whether tilting admission on racial grounds was like reserving places for athletes. He responded in the affirmative with a gracious reference to the low quality of sport on the playing fields of Cambridge.
In fact, there is a critical difference. Prowess in athletics is a sure sign of the high motivation that ought to be recognized in admissions policies. One of the reasons standards are lowered for minorities is precisely because they are not well motivated, and it is a genuine question whether in the absense of motivation even easier admission policies will produce qualified engineers and doctors.
Several Justices asked about the place reserved for minorities in the medical school in terms that suggest there ought to be a rough fit between the ethnic structure of the population as a whole and the ethnic mix in the job market. But ethnic cultures have distinctive qualities that foster some activities and discourage others. Some groups are good at the professions, and others at entrepreneurship, and so forth. So places in graduate schools have to be built around the number of applicants who can make good, not on a notion of ideal balance in the professions.
The Bakke case, in short, provides a poor vehicle for deciding hard and controversial questions. I suppose the one good thing about the judicial process in such matters is that it recognizes the virtue of deciding cases one at a time, not once and for all time.