It is hardly breaking news that the Supreme Court is deeply split between conservative and liberal blocs. This split has led to frequent 5-4 opinions, often with Justice Anthony Kennedy providing the swing vote. Occasionally, the split produces opinions that temporize, addressing a very narrow issue or avoiding the central question altogether. The Court’s much-awaited decision in the affirmative action case of Fisher v. University of Texas at Austin, announced on Monday, June 24, is a classic example of avoiding the central question.
In three past landmark cases, the Supreme Court declared that racial diversity is a legitimate and constitutional objective of institutions of higher learning. Outright quotas, it said, were impermissible. Rather, measures to promote diversity must be narrowly targeted to that objective. Such measures must be subject to ‘strict scrutiny,’ which in the case of universities means that the burden of proof rests on the university to show what it is doing is as narrowly crafted as possible to achieve ‘diversity.’
But there was and remains a big problem. No one has ever defined just what diversity for a state university means—whether it is defined relative to the state’s overall population, the graduating high-school population, or what; whether it applies at the level of the university, particular programs within the university, or the individual classroom. It is hard to believe, for example, that a single definition of ‘diversity’ for Hispanics and African Americans could or should apply at, say, the University of South Dakota and the University of Texas. Faced with such a protean challenge, it is hard to imagine what objective standard a national court system could evolve to test the constitutionality of the admission policies.
Enter the Texas admission program. The Texas admission program contains two elements. First, the top 10 percent of each graduating Texas high-school class is eligible for admission to the University of Texas. The top-10 percent policy results in admission of more Hispanics, African-Americans, and Native Americans and fewer whites and Asian-Americans than would be the case if admissions depended only on test scores because of widespread residential segregation and the fact that Hispanics, African-Americans, and Native Americans score lower on standardized tests than do whites and Asian-Americans. The second admission screen is a ‘personal achievement index’ based on numerous factors, one of which is race, although it is not assigned a uniform numerical value.
The plaintiff, Abigail Fisher, was not in the top 10 percent of her graduating class and was not admitted on the basis of the personal achievement index. She sued, alleging that she would have been admitted but for the use of race in the personal achievement index. The federal district court, which initially heard the case, granted summary judgment in favor of the University, finding that its admission procedures fell within the broad and rather diffuse guidelines laid down in previous Supreme Court decisions that granted universities ‘substantial deference’ in deciding what admissions policies best advanced its educational objectives. A three-judge panel of the Fifth Circuit Court of Appeals concurred.
Ms. Fisher carried her appeal to the Supreme Court. Her attorneys did not ask the Court to overturn its previous decisions authorizing affirmative action. Instead, she alleged that the procedures were not narrowly targeted. The fact that the Supreme Court agreed to hear the case led many to believe that it was prepared to end affirmative action in university admissions.
Questioning during oral arguments heightened this expectation. Three justices were openly hostile to the arguments advanced by the attorneys for the University of Texas. Justice Thomas, who did not break his customary silence during oral arguments, was on record in previous dissents solidly opposed to affirmative action. Justice Kennedy who opposed affirmative action in the two most recent previous cases, one rejecting and one affirming different affirmative action plans, displayed discomfort during oral arguments with the position advanced on behalf of the Texas plan and was expected to provide the swing vote.
The fact that Justice Kennedy ended up writing the opinion of the court suggests that he may have been critical to the ultimate decision. But the vote was not 5 to 4. Seven justices agreed that the Circuit Court had failed in its duty to apply ‘strict scrutiny’ to the Texas plan in order to determine whether it was ‘narrowly crafted’ to achieve diversity. Two of the seven, Justices Scalia and Thomas, wrote separate opinions that made clear that they would have preferred to overturn affirmative action—which Justice Thomas labels ‘racial discrimination’—had that issue been before them. One justice, Elena Kagan, recused herself.
Justice Ruth Bader Ginsburg, in a biting dissent, argued that the Circuit Court had done just what the Supreme Court had said lower courts should do—sustaining an admission policy that she found to be narrowly crafted in service of the constitutionally legitimate objective of diversity.
The right way to read this decision in my view is that two Justices were ready to overturn affirmative action today, one to sustain it. The other five were either unwilling to sign what would be an explosively controversial rejection of affirmative action or were willing to endorse a temporizing compromise that put off the issue for another day. The obvious discomfort with either sustaining or completely ending affirmative action that has marked Justice Kennedy’s position and that were evident during oral arguments in this case may have led to this compromise.
The language of Monday’s decision adjures the lower courts to view the Texas admission policies and all others with a skeptical eye. But it provided no guidance, apart from that in previous cases, on what exactly that means. It remains unclear how the Fifth Circuit Court will handle the issue. The opinion that the Supreme Court reviewed was the product of three judges. Seven of sixteen judges in the Fifth Circuit had supported a rehearing before the entire Fifth Circuit bench.
Whether the case is reviewed by the three judges who handed down the original decision or by the entire Fifth Circuit could influence its outcome. It is hard to imagine, however, that the current Justices of the Supreme Court will manage to escape revisiting the case of Abigail Fisher or that, based on today’s non-decision, they will overturn whatever decision the Fifth Circuit eventually reaches.