Conservative opponents of race-based affirmative action are exceptionally displeased with the Supreme Court’s ruling in Fisher v. University of Texas (Fisher II), allowing the use of race in that school’s admissions process.
The nub of their argument is that the majority opinion written by Justice Anthony Kennedy pretends to follow Fisher I, which by insisting on strict scrutiny made use of race more difficult, but leaves the court in the position of simply rubber-stamping what schools say is their rationale for use of race. That is anything but “strict scrutiny,” they argue.
“The majority opinion . . . in Fisher II pays only passing lip service to the strict scrutiny test it purports to apply, and instead, effectively defers to the government discriminators to determine if their amorphous plans meet their vague goals,” argues Todd Gaziano of the Pacific Legal Foundation. “Justice Alito’s lengthy dissent, for himself and for Chief Justice Roberts and Justice Thomas, eviscerates the majority’s reasoning and its many logical failures. Among other things, Justice Alito explains why it is impossible for courts to seriously evaluate a university’s racially discriminatory admissions plan when it fails to identify its goals with any clarity and prevents any reasonable means of evaluating progress toward achieving them.” He adds: “Justice Alito also explains how the University of Texas’s plan is designed to advance wealthier members of certain racial and ethnic groups over poorer or more disadvantaged individuals. As Alito quipped . . . . that’s affirmative action gone berserk.”
I am more optimistic than some affirmative action opponents insofar as Kennedy seemed to bend over backward to undersell his own opinion. As Terry Eastland pointed out, “[I]t is possible to imagine another equal protection challenge to racial admissions at some other university or professional school that rises to the Court (years from now) and in which the Court assesses much differently the preponderance of evidence before it.”
In that vein, veteran court reporter Lyle Denniston writes:
First, that opinion referred to the Texas approach as “sui generis” — a Latin phrase for one-of-a-kind. That was the strongest indication that Kennedy wanted to signal lower courts that any different plan would have to satisfy the tough test that Kennedy himself had crafted when the Fisher case was decided by the Court in 2013 — a test that, he concluded on Thursday, the UT-Austin plan had passed.
Second, it stressed that campus leaders in Austin should not interpret the new decision as necessarily meaning that they could continue to follow the same policy, with its partial use of race, without changing it if circumstances change.
Third, it expressly ordered the university “to engage in constant deliberation and continued reflection regarding its admissions policies.” This phrasing appeared to forecast a future vulnerability for the university if it did not regularly review its policy in the future to see if the consideration of racial factors was still necessary to achieve its academic goal of a racially diverse student body.
This is another typically unsatisfying opinion in the Chief Justice Roberts-era Supreme Court. In the name of judicial restraint, the court often sacrifices clarity and sound reasoning, creating even more uncertainty about the state of the law. That’s great for the legal profession but in this case is exceptionally unhelpful to school administrators, students and their families. Unfortunately for conservatives the court beginning next year will become much more definitive — definitively liberal — in allowing use of race in higher education and likely elsewhere as a factor in government decision-making.
Hillary Clinton cheered the results in Fisher II, and she will look for justices who reliably vote with the entirely predictable liberal quartet of Justices Sotomayor, Ginsburg, Breyer and Kagan. As for Donald Trump, it’s becoming more and more likely that he will lose and lose big. In any event, his list of conservative judges prepared for him by anonymous conservatives was a mirage. No sooner did he release it than he began to add caveats and give himself room to ignore the list.
John Yoo, a conservative legal scholar who disagrees with Fisher II, remarked, “I cannot see any way for Trump to persuade conservatives of his commitment [to appoint conservative judges], given his changes on policies from the minimum wage to tax to gun control.” What’s worse, Trump might be inclined to pick judges who are indifferent to constitutional strictures insofar as they would permit him exceptional executive discretion to rewrite and ignore laws willy-nilly.
In selecting a nominee as inept and erratic as Trump, the GOP likely will lose the Supreme Court and a great many other judicial appointments. At the Supreme Court, in a few years we may pine for the days of incrementalism, when Kennedy wrote the majority opinions, however muddled, rather than a liberal on the court setting new precedent in bold, unambiguous strokes.