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Affirmative Inaction at the Supreme Court

Ten years ago, when the Supreme Court ruled on two University of Michigan affirmative action programs, Justice Sandra Day O’Connor included this dictum: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Many Court observers saw the decision to hear another university affirmative action challenge as an opportunity for the Court’s conservative majority to abandon that timetable. Justice O’Connor, the author of the ruling upholding Michigan Law School’s program (Grutter v. Bollinger), had been replaced by Samuel Alito, who was widely viewed as less hospitable to race-consciousness in public policy than his predecessor. And nothing had happened in the political or cultural arena to make affirmative action less controversial or easier to sell to skeptics.

So it was surprising to see the Court, in Fisher v. University of Texas at Austin, decline to issue a sweeping ban on affirmative action in public higher education, and instead opt for a distinctly more minimalist ruling based on the failure of the Court of Appeals for the Fifth Circuit to apply the appropriate standard of review to Abigail Fisher’s equal protection claim. (Fisher is a white woman who claimed that the University of Texas at Austin’s decision not to admit her for undergraduate study was the product of the state’s impermissible use of race in its admissions decisions.) Earlier rulings had held that affirmative action programs would be constitutionally acceptable only if they were narrowly tailored to serve a compelling government interest. While seven of the eight participating justices (Justice Kagan recused herself because she was Solicitor General while the case was in the lower courts) were willing to defer to the University of Texas’s claim that the benefits of attracting a diverse student body constituted a compelling interest, it was less willing to accept at face value the claim that the university’s program provided individualized assessments of each applicant, or that the university could not have achieved its aims without using race-conscious means. Because the Fifth Circuit did not closely scrutinize the university’s program when it upheld a district court’s summary judgment in the university’s favor, the Court sent the case back to the Fifth Circuit with instructions to apply the more demanding standard of review. 

For progressives, this ruling is about as good as one could have hoped for. (The presence of Justices Sotomayor and Breyer in the majority coalition signals as much.) It left the existing program in place, and it relied on precedents that an adverse ruling in Fisher could easily have overturned. But the ruling had something to offer conservatives as well. There’s a good chance that the Fifth Circuit, having been instructed to put its back into its application of strict scrutiny, might strike down the Texas program. The ruling also signals other lower courts facing similar claims that they should view affirmative with a skeptical eye. Perhaps most important, the Court has already scheduled for review next term a challenge to a Michigan ballot initiative that banned race- and sex-based preferences in public university admissions decisions. That case could provide the vehicle for a broader gauged attack on affirmative action, and nothing in Fisher precludes the Court from taking an approach that is more stringent in its insistence on color-blindness.

I am puzzled that it took the Court so long to reach its conclusion, though. Fisher was argued in October, and much of the speculation surrounding the delay proffered the theory that a sweeping ruling was coming, and that the delay was prompted by the writing of one or more lengthy dissents, which would then prompt the majority opinion writer to edit his or her work in response. But that didn’t happen here. Why did the Court need nine months if it was just going to punt the case back to the Fifth Circuit? That seems like a decision one could make during an extended happy hour. Here’s my speculation as to what happened:

As a occasional procrastinator who has taught more than my share of procrastinators, I’d like to think I know a few things about procrastination. People procrastinate for many reasons, but one is the desire to delay an unpleasant reckoning. My sense is that Justice Kennedy, author of the majority opinion, needed time to reckon with how to extricate himself from a bind of his own making–namely, his votes in the Michigan affirmative action cases. Chief justices often assign majority opinions to their colleagues in the middle as a way of cementing their loyalty to the majority coalition’s position, and there’s a good chance that Chief Justice Roberts had something like this in mind when he assigned the opinion to Justice Kennedy. If, in the course of writing an opinion to invalidate the program, Justice Kennedy had developed cold feet, he would have faced great difficulty in reconciling his decision with his earlier votes against affirmative action, given that the challenged element of the Texas program didn’t differ significantly from the Michigan program he had voted to invalidate. Voting to vacate and remand allowed him to reiterate the Court’s concerns about race-consciousness in public policy while not producing any immediate public policy consequences. Justices Scalia and Thomas might eventually achieve their goal of invalidating all affirmative action, but for now they will have to bide their time. 

 

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