Affirmative Action Survives, For Now

Amy Howe explains today’s 7-1 SCOTUS ruling:

Today a broad majority of the Court reinforced that affirmative action must be strictly reviewed, but it did not outlaw those programs.  In an opinion that required only thirteen pages, the Court explained that a university’s use of race must meet a test known as “strict scrutiny.”  Under this test, a university’s use of affirmative action will be constitutional only if it is “narrowly tailored.”  The Court in Fisher took pains to make clear exactly what this means:  courts can no longer simply rubber-stamp a university’s determination that it needs to use affirmative action to have a diverse student body.  Instead, courts themselves will need to confirm that the use of race is “necessary” – that is, that there is no other realistic alternative that does not use race that would also create a diverse student body.  Because the lower court had not done so, the Court sent the case back for it to determine whether the university could make this showing.

Lyle Denniston believes that the ruling has created “a strong new incentive for opponents of ‘affirmative action’ in college admissions to test virtually every such program; indeed, in some ways, the tone of the opinion would seem to invite such further testing.” Noah Feldman compares Justice Kennedy, who wrote the majority opinion, to Sandra Day O’Connor:

Justice Sandra Day O’Connor started [the countdown clock on race-based college admissions] in 2003, when she wrote for the court that she expected such policies might be necessary (and therefore constitutional) until 2028. … The upshot of the Fisher holding is that if Kennedy does want to strike down affirmative action, he wants to do it gradually, stepwise, over several more years of litigation. That is exactly what O’Connor wanted with her highly unusual 25-year clock. Kennedy tends to prefer principles to such explicit pragmatic compromise. But here, with the chance to make headlines by striking down affirmative action, he acted like O’Connor.

That gives us a clue for what Kennedy might do in the two same-sex marriage cases that still loom.

If he is foisting gradualism on conservatives who want to end affirmative action, he may be preparing to foist gradualism on liberals who want full marriage rights for gay people right now. That would require Kennedy to eschew some of his grandly principled holdings in earlier fundamental rights cases — but it would further consolidate his position as the most powerful justice since, well, Sandra Day O’Connor.

Jeffrey Rosen is in the same ballpark:

The decision is a tribute to the moderation of Justice Kennedy and Chief Justice Roberts, who defied expectations and insisted on a narrow rather than a broad opinion. Unlike Justice Clarence Thomas, who would have overturned the Grutter case, and cases stretching back to the Bakke decision in 1978, which hold that educational diversity is a compelling interest for universities to pursue, Kennedy and the six conservative and liberal justices who joined him continued to accept Grutter as good law. That is a hugely significant act of judicial restraint, especially since most commentators expected the Court to go the other way.

David Corn writes that this “was a bad day for Justice Clarence Thomas”:

As he notes in a concurring opinion (that reads like a dissent), he wanted the court to “hold that a State’s use of race in higher education admissions is categorically prohibited by the Equal Protection Clause.” Thomas’ decision was longer than that of the majority opinion written by Justice Anthony Kennedy. He compared the arguments in favor of affirmative action to those used to support segregation in years bygone, calling them “virtually identical” to the contentions the court rejected to undo segregation. He declared, “The use of race has little to do with the alleged educational benefits of diversity.” And he went as far as you would expect, noting that “Slaveholders argued that slavery was a ‘positive good’ that civilized blacks and elevated them in every dimension of life.”

Yes, Thomas compared the justification of affirmative action to the justification for slavery. And he asserted that affirmative action harms white and Asian American students denied admission but actually causes more harm to those admitted under such programs: “Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates.”

And Eric Posner examines Ginsberg’s dissent:

The lawyers for Abigail Fisher, the white applicant to UT Austin who brought today’s case, did not challenge an important element of the University of Texas’ admissions system, which is that the university will accept the top 10 percent of the class of each high school in Texas. This rule sounds race-neutral, but as Ginsburg notes in her dissent, it was just a disguised form of affirmative action, based on the background fact that Texas schools are highly segregated. The top 10 percent of an all-black school in a poor school district will be more poorly qualified for higher education than the 10–20 percent tier of an all-white school in a wealthy district, yet it’s the first group that automatically gets to go the University of Texas. This is a crude way to engage in affirmative action, and if the court bans explicit racial classifications while permitting this kind of disguise, which universities will rush to embrace, then it’s hard to see how the law will advance the meritocratic ideal embraced by opponents of affirmative action.