A Fascinating Supreme Court Punt on Affirmative Action

Photograph by Hisham Ibrahim/Getty Images

Contrary to the fictional Mr. Dooley and some serious legal scholarship, the Supreme Court does not simply follow the election returns. It’s more complicated than that, as demonstrated by today’s intriguing if ultimately unsatisfying 7-1 ruling (pdf) on university affirmative action.

Many court-watchers expected the five justices appointed by Republican presidents to strike down the racial-preference admission policy at the University of Texas. They did not. In a notably understated 13-page majority opinion, Justice Anthony Kennedy instructed a lower court to take another, more skeptical look at UT’s approach to promoting campus “diversity,” but he did not outlaw racial preferences or even seriously curtail them. Affirmative action lives, at least for now.

As a practical matter, the decision will encourage foes of racial preferences to continue their multi-decade campaign to limit their use in higher education and other social and business spheres. The justices did not, however, change the law of the land on this delicate issue. Indeed, the majority endorsed a key precedent: the 2003 ruling that upheld the consideration of race in university admissions as one of many “plus” factors that could favor an applicant.

“Punting” is the traditional legal term of art for this kind of decision not to decide. Two members of the high court’s liberal wing—Justices Sonia Sotomayor and Stephen Breyer—joined Kennedy’s opinion without making any comment. Only Justice Ruth Bader Ginsburg, the sole dissenter, issued a statement applauding the University of Texas for candidly considering race. Justice Elena Kagan did not participate, as she was serving as Solicitor General in the Obama administration as the case was making its way to the Supremes.

Despite its stunted nature, the decision in Fisher v. University of Texas deserves close study. It offers fascinating hints and reminders about how the court operates and how the justices think. Some insights gleaned from between the lines:

• The unpredictable Kennedy once again defies categorization (some might say comprehension). He is transforming from a “swing” vote on ideologically charged cases into an outright wildcard. Kennedy dissented from the 2003 ruling, Grutter v. Bollinger, criticizing the majority there for its “abandonment” of principle. In the UT case, he wrote approvingly of Grutter and its analysis without even attempting to reconcile the contradiction.

• Kennedy’s failure to grapple strenuously with affirmative action and the constitutional principle of “equal protection” may signal that the justices struggled to resolve this case and compromised at the last minute on opinions that don’t fully reflect the views of most members of the court. Fisher v. University of Texas was a marquee case at the outset of the 2012-13 term. It was argued back in October. The justices probably did not spend nine months on today’s modest work product. So what happened? As usual, Professor Adam Winkler of UCLA’s law school has a provocative theory:

“In all likelihood, the justices were writing different opinions, perhaps even a bold, forceful one from the Court’s conservatives outlawing all uses of race. That would explain the delay. Such a decision would have been difficult to write because it would have been contrary to nearly a half century of Supreme Court cases allowing some uses of race, like Grutter. The liberals would certainly have written impassioned dissents, calling out the conservatives for their judicial activism and assertive rewriting of the Constitution. The conservatives would have responded in kind, defending their approach. The back and forth could easily have gone on for months.

“We don’t know what happened, but one possibility is that the Chief Justice had cold feet. After a series of quite activist decisions early in his tenure—including the widely denounced ruling in Citizens United, permitting corporations to spend unlimited amounts of money to influence elections—Chief Justice John Roberts may finally be living up to his promise to support narrow, consensus rulings that don’t upset current law. That certainly seems to be what happened in last year’s Obamacare case, when he changed his vote at the last minute and decided to uphold the president’s signature legislative accomplishment. Perhaps it happened here again, and the Chief Justice brokered a compromise to kick this case down the road for another day.”

• Finally, Justice Clarence Thomas’s concurring opinion is well worth reading (pdf). As the court’s sole African American, Thomas has long made it his mission to speak up about the side-effects of policies intended to help members of racial minority groups. He does so eloquently. Whether one agrees with his near-absolutist position that racial-preference policies are pernicious, his analysis, infused with personal experience, demands respectful attention.

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