I’ve been cogitating for over a week about the Supreme Court’s second go-round with Abigail Fisher’s challenge to the University of Texas’s undergraduate affirmative action program, and I’m still struck by how little we learned from the proceedings. We already knew that there were four justices (Roberts, Scalia, Thomas, and Alito) who would make little effort to disguise their hostility toward affirmative action. Even Scalia’s Foxified version of the mismatch theory, which claims that affirmative action harms beneficiaries by encouraging them to attend schools that are too academically challenging for them, startled people only because of its tone, as opposed to its content. (I did entertain the prospect that Scalia had a bet with one of his fellow justices about when Clarence Thomas would speak next during oral argument, and that Scalia’s remarks were intended to bait Thomas into responding.) We also knew that four justices (Breyer, Ginsburg, Sotomayor, and Kagan) supported the state’s efforts to produce a student body matching the diversity of a ethnically diverse state.
The major discovery, as I see it, is the recognition that Justice Kennedy really really really doesn’t want to be the fifth vote to deep-six affirmative action, whatever his reservations about the policy. Everything about Fisher‘s journey strongly suggests that the four most conservative justices took the case with the expectation that they would eventually garner Kennedy’s vote. Had Kennedy wanted to supply that fifth vote, he could have done so when Fisher’s case first appeared before the justices. Instead, the Court chose to remand the case to the Fifth Circuit Court of Appeals, with orders to apply strict scrutiny, the most stringent form of equal protection review, to the Texas plan. (More precisely, to the part of the plan that uses holistic assessments of applicants, rather than the part that guarantees admission to any student graduating in the top 10 percent of his or her high school class.) The conservative-leaning Fifth Circuit had already upheld the Texas policy, but perhaps the Supreme Court’s directive would induce a different result. When the Fifth Circuit applied strict scrutiny and still upheld the program for a second time, the Court could have chosen to call it a day, but instead it seized the opportunity for a second crack at the case.
Justice Kennedy’s behavior during Fisher II’s oral argument suggests continuing hesitancy to accept the conservative bloc’s invitation to curtail affirmative action. Aside from eschewing the hostile rhetoric that characterized the more conservative justices’ line of questioning, Kennedy toyed with the idea of remanding to the trial court for fuller fact-finding into the operation of the Texas admissions policy. It is possible that a deeper dive into how the Texas policy works, or into how the minority students admitted under the Ten Percent Plan compare to those admitted under the holistic analysis being challenged by Fisher, might prove enlightening. But the justices have already been supplied with ample information, courtesy of litigants’ filings and amicus curiae briefs, into the unique way that the University of Texas seeks to produce a diverse student body.
As one who battles tendencies to procrastinate (hence the tardiness of this post), I think Justice Kennedy’s actions should be viewed as consistent with the procrastinator’s mindset. Sometimes people procrastinate because their ingrained perfectionism leads them to fear failure. But sometimes, as I believe is happening here, people procrastinate to avoid having to commit to a particular course of action. If you decline to make a decision, after all, you can skirt responsibility for what happens subsequently.
In Fisher II, Kennedy currently has several decision options, none of which seem to appeal to him. He’s skeptical of race-consciousness in public policy, and that skepticism precludes siding wholeheartedly with the liberal justices and upholding the use of race as part of a holistic analysis, as Justice Powell set forth in his pivotal opinion in Regents of the University of California v. Bakke (1978). At the same time, he does not subscribe to the doctrinaire color-blindness that his fellow conservatives are insisting upon, but any opinion that strikes down Texas’s holistic approach must invalidate Bakke as well, and Kennedy, based on his actions in both Fisher cases, seems reluctant to do that either. Barring a change of mind or heart, his remaining option is to hold out for some additional information to serve as cover for whichever position he eventually takes. His conservative colleagues could lean on him to make a decision already, but given the procedural history we’ve seen so far, they might not find themselves pleased with the result of that decision. Perhaps, then, they will enable Kennedy’s procrastination. Stay tuned….