High court affirmative action debate: a referendum on King's dream.

After two hours of fiery debate on the future of affirmative action in college admissions, John Payton, an attorney representing the University of Michigan before the U.S. Supreme Court, ended on a note that everyone could agree on: "This is an enormously important issue, not just for the University of Michigan, but for the whole of higher education and the entire country."

As if to underscore the historic nature of the April 1 oral arguments, the justices released a tape of the proceedings for only the second time in the Court's history. Afterward, the Rev. Jesse Jackson led thousands of college students on a march to the Lincoln Memorial, a clear echo of the Rev. Martin Luther King Jr.'s 1963 March on Washington, in which he described a world where African-Americans would "not be judged by the color of their skin, but by the content of their character."

The justices seized the opportunity to judge the progress toward King's dream 40 years later. For Justice John Paul Stevens, an ardent supporter of affirmative action, it's unfinished business. "We all hope someday that race will be an irrelevant factor in decision-making," he said, clearly suggesting there is more work to be done. Justice Antonin Scalia described a nightmare for white applicants who believe they were rejected because of their race. He spoke of "high school seniors who see very visibly less qualified people getting in ahead of them.

"If you think that's not creating resentment, [you're] just wrong," he said.

But the arguments were not more than two minutes under way when Justice Sandra Day O'Connor warned against "speaking in absolutes." All eyes were on her because it is her vote that is widely believed to be the deciding factor. Unlike the other justices, she gave few clues about her thinking. Many Court watchers expect her to shun the margins of the debate and hash out a pragmatic compromise.

At issue are two cases involving law school and undergraduate admissions at the University of Michigan, Grutter v. Bollinger (No. 02-241) and Gratz v. Bollinger (No. 02-516), which the justices heard back to back. The Court, expected to rule by early summer, is examining whether the Equal Protection Clause of the Fourteenth Amendment should make race an impermissible factor in admissions. It will also decide whether the goal of racial diversity is a compelling enough governmental interest--and whether Michigan's policies are tailored narrowly enough--to pass constitutional muster.

The law school seeks a "critical mass" of minority students, while the undergraduate program gives minority applicants 20 points on a scale of 150. The use of the term "critical mass" led to Scalia's relentless grilling of Maureen Mahoney, the law school's attorney:

Scalia: "Is 2 percent critical mass?"

Mahoney: "I don't think so, Your Honor."

Scalia: "How about 4 percent? ... You have to pick some number, don't you? Like 8 [percent]."

Mahoney: "Now, Your Honor ..."

Scalia: "Does it stop being a quota if it's somewhere between 8 and 12, but it is a quota if it's 10? I don't understand that reasoning. Once you use the term 'critical mass,' you're into Quota Land."

If fashioning a compromise does fall on O'Connor's shoulders, her job won't be easy. Despite the passage of four decades, the Court remains bitterly divided on what constitutes fairness and equality and how to balance the rights of individuals against the nation's history of inequity.

Perhaps drawing on news of the U.S. military's push toward Baghdad last month, several justices painted the issue as one of national security. Of the 100-plus amicus briefs submitted to the Court, the one that clearly drew the justices' attention came from retired Gen. H. Norman Schwarzkopf and other former armed forces leaders. They argued that the strength of the military depends on minority officers being trained through affirmative action at the nation's service academies.

Toward the arguments' close, Justice Stephen Breyer summarized the brief's position--and perhaps his own: 'We're 280 million people. We have large racial diversity within the country.... And we think from the point of view of business, the armed forces, the law, etc., that there is an extraordinary need to have diversity among the elites. Without it, the country might be worse off. In fact, the country might not function well at all."