With everyone expecting a bang, the Supreme Court delivered a whimper. The decision in Fisher v. Texas was anticlimactic and surprising; no one would have predicted that the lone dissenter to a decision that tacitly upheld affirmative action would be Ruth Bader Ginsburg. The justices’ ultimate decision, which remanded the case back to the Fifth Circuit and asked that it reconsider its initial decision, exemplified an unusual degree of judicial restraint.
In the 7-1 decision to remand the case (Elena Kagan recused herself), the Court reaffirmed its strict scrutiny standard for affirmative action programs. Strict scrutiny is the highest standard of judicial review to which a law may be held. In order to stand, the law must be backed by a compelling state interest and narrowly tailored to advance that interest. The early directives from the Supreme Court, Regents of the University of California v. Bakke (1978) and Grutter v. Bollinger (2003), established this strict scrutiny standard for affirmative action, while also asserting that promoting racial diversity in education can be a compelling state interest.
The Court’s Fisher decision displayed rare judicial restraint. Kennedy hewed very closely to previous arguments made by the court in support of affirmative action, acknowledging the benefit of racial diversity in admissions in promoting “enhanced classroom dialogue and the lessening of racial isolation and stereotypes.” The verbiage in the decision differs little from previous court statements on the matter, a respite from the judicial activism, evident in cases like Citizens United v. Federal Election Commission (2010), that has characterized the Supreme Court in recent years.
However, unlike the majority opinion, both Clarence Thomas’ concurrence and Ruth Bader Ginsburg’s dissent were anything but restrained. Thomas wrote that if the issue came up again, he would strike down affirmative action. The lone black justice on the Court, who has long been an outspoken critic of affirmative action, compared the practice to both slavery and segregation. His argument—that affirmative action hurts those students who are admitted more than those who are rejected—has roots in experience. Thomas, the only black person at his high school and one of a handful at the seminary college he attended, considers his Yale Law degree useless because of the taint of affirmative action.
By contrast, Ginsburg’s dissent was a ringing endorsement of race-conscious affirmative action programs. Ginsburg wrote that the component of the University of Texas admissions program at issue, which explicitly considers race, is constitutional, and that there is no need to remand the case to the Fifth Circuit for further review. Moreover, she argued that explicit consideration of race is preferable to UT’s Top Ten Percent program, which guarantees admission to students in the top ten percent of their graduating class in high school. According to Ginsburg, the facially race-neutral Top Ten Percent program actually takes advantage of geographic segregation in Texas in order to increase racial diversity. She concludes that admissions programs “that candidly disclose their consideration of race [are] preferable to those that conceal it.”
On the other hand, Justices Samuel Alito, Clarence Thomas, John Roberts, and Antonin Scalia gave every indication in previous decisions and oral argument that they oppose the practice of affirmative action. Ultimately, however, the Court punted on the decision rather than issue a sweeping ruling in a case that did not demand it. The passive outcome of the decision is especially surprising given that Roberts himself once opined that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” However, Roberts displayed a reverence for the history and reputation of the Court last year in siding with the Court’s liberal wing to protect Obamacare, and similar concerns may have influenced him in Fisher. This may explain why the Court’s conservative justices were unable to produce a majority to strike down affirmative action.
While the next Jeffrey Toobin book will explain the inner politicking that led to the unexpected decisions in both the health care and affirmative action cases, for the moment, the policy stands. Yet, the future of affirmative action is far from settled. The Court has already accepted another affirmative action case for the next term, when it will consider the constitutionality of a 2006 Michigan referendum that barred the state’s public colleges and universities from considering race or ethnicity in admissions. Until then, precedent and stare decisis will stand, even as judicial activism on both sides threatens the principle’s fragile foundations.
Photo Credit: Portal to Public Health at the University of Texas at Austin
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