The cowardice of Fisher II suggests that Justice Anthony Kennedy fears another confrontation by the “Wise Latina.”
Justice Anthony Kennedy’s milquetoast 4-3 opinion in Fisher v. University of Texas (Fisher II) has been lambasted from all directions as “a devastating blow to the cause of a color-blind Constitution” (by John Yoo), a “logical pretzel” (by the Wall Street Journal), and a “hedgy, compromise opinion” representing a “pyrrhic victory” for UT that “paves the way for more lawsuits against more universities in the future” (by The Daily Beast). The most damning criticism, however, was mounted by Justice Samuel Alito, whose blistering 51-page dissenting opinion begins with these words: “Something strange has happened since our prior decision in this case.” Something strange, indeed.
Since Brown v. Board of Education (1954), the U.S. Supreme Court has viewed itself as the enlightened molder of social consensus, leading the recalcitrant political branches to reach progressive outcomes demanded by social justice. Sometimes (as with desegregation) the Court manages to get in front of the parade of public opinion, and sometimes (as with same-sex marriage) the Court forces unruly voters to accept a particular end result. But, as with abortion, sometimes the Court miscalculates, becoming enmired in an intractable political dispute. And in Regents of the University of California v. Bakke (1978), the Court—fueled by the conceit of its superior wisdom—divined a “solution” to disparate race enrollments in higher education that has proven to be a quagmire.
Ironies abound in the long-running affirmative action case of Fisher v. University of Texas at Austin, which has come before the U.S. Supreme Court (again) following its 2013 remand to the U.S. Court of Appeals for the Fifth Circuit for reconsideration.
Abigail Fisher’s cert petition is scheduled for conference later this month. In Fisher I, the Supreme Court decided by a vote of 7 to 1 (Justice Kagan abstaining) that the Fifth Circuit had failed to apply correctly Grutter v. Bollinger (2003), the inscrutable 5 to 4 decision that upheld the University of Michigan’s use of racial preferences in admissions based on Justice O’Connor’s controversial notion that, if necessary, race could be used as a factor to achieve the mix of minority students necessary to realize the perceived “educational benefits” of diversity.
As we all try to keep up with the Supreme Court’s Operation Fast and Furious (And Keep the Best For Last), here’s a dorky but perhaps telling point on yesterday’s civil rights decisions: Two of the cases dealt with employment discrimination—one, with the question of who qualifies as a “supervisor”; the other, with the legal standards that apply to retaliation claims. (Both were 5-4 decisions, with the usual ideological line-up.) In both cases, the statutes at issue are administered by the Equal Employment Opportunity Commission. The EEOC wasn’t a party to the proceedings (it just issued “right to sue” letters), but…
Yesterday’s post interpreted Mass v. EPA as a Supreme Court exercise in institutional blame avoidance. Today, as threatened, a second, more incendiary example: affirmative action in higher education. With the February 21 cert grant in Fisher v. University of Texas, the question has returned to the Court; it’s worth a quick look. The precedents and their holdings are familiar. Justice Powell’s controlling opinion in Regents of the University of California v. Bakke (1978) held that universities may not use racial quotas or set-asides; however, they may use race as a “plus factor.” In the Michigan affirmative action cases, Gratz v. Bollinger…