More "compelling interest"
I don't always agree with the Washington Posts's Richard Cohen, but he seems spot on in Confused O'Connor:

To rationalize the irrational, O'Connor declared what amounts to a racial emergency. She has to do that to get around the Constitution's equal protection clause, which provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." O'Connor takes the clause very seriously. She cites a previous Supreme Court decision (Adarand Constructors v. Peña) that says, "Government may treat people differently because of their race only for the most compelling reasons." Fortunately for her, she has found one: minority underrepresentation.

In one form or another, O'Connor uses the term repeatedly. But she never defines it. Like pornography, she knows it when she sees it. Underrepresentation would not be, say, 14.5 percent of the law school class -- the actual figure of minority students enrolled -- but it would be, say, 4 percent of the class, the predicated percentage if there were no affirmative action program. That calamity enables her to suspend the Constitution.

O'Connor recognizes what she has done. She cannot bring herself to expound some new legal principle, so in the manner of Lincoln and habeas corpus or FDR and the incarceration of Japanese, O'Connor declares an emergency that will end when underrepresentation is no more. "The court expects that 25 years from now, the use of racial preferences will no longer be necessary," she writes. Let us all pray.

Good idea, but that may be unconstitutional unless there's an emergency too.