What happened with justice Kennedy between Fisher I and Fisher II?

Opponents of affirmative action, like opponents of abortion, have been steadily chipping away at it hoping to make it so marginal as to be effectively dead or to even land a final blow that eliminates it altogether. In the case of Fisher v. University of Texas at Austin (that I discussed earlier here) they thought that the latter moment had come, at least when it came to affirmative action in public university admissions because all the signals were that the court would rule against the UT’s policy of using race as a a limited factor in their consideration of prospective students.

But the vote on Thursday was 4-3 that the admissions policy of the University of Texas at Austin was constitutional, with justice Anthony Kennedy writing the majority opinion and justice Elena Kagan recusing herself. You can read the majority opinion and the long and strong dissent by justice Samuel Alito here.

There have been major reverberations following the ruling. Public universities across the nation are breathing a sigh of relief that their efforts to promote greater diversity in their student body have not been severely curtailed. The result was greeted with pleased surprise by those who support affirmative action and great dismay by those who had been strongly expecting the court to issue a definitive ruling striking down any consideration of race in university admission. Opponents were expecting that the court would overrule the precedent set in 2003 in Grutter v. Bollinger that allowed the use of race as a factor in college admissions under certain conditions.

The reason for this expectation was that in previous rulings on affirmative action cases, including the earlier appearance of this case (that is referred to as Fisher I), justice Kennedy had seemed to be opposed to it and thus seemed likely to do so again. The Grutter ruling was a close 5-4 one upholding the limited use of race as a factor with justice Sandra Day O’Connor writing for the majority along with justices Stevens, Souter, Ginsburg, and Breyer, and chief justice William Rehnquist filing a dissent that was joined by Kennedy, Scalia and Thomas, though there were some overlapping concurrences with parts of O’Connor’s opinion. Since then three of the votes in favor (O’Connor, Stevens, and Souter) have been replaced by two in favor (Kagan and Sotomayor) and one opposed (Alito), shifting the balance the other way.

The puzzle is that in order to agree to hear the Fisher II case, there had to be at least four votes to do so and although such votes are secret, it was assumed that the justices who wanted to hear it did so in order to strike down the policy and thought they had a majority to do so. A majority required five votes since at that time justice Scalia was still alive. Since Kagan had recused herself, a 4-4 split would have resulted in the Fifth Circuit Appeals Court verdict in favor of UT remaining intact which would have not served their purpose. This suggests that Kennedy was one of the five and yet he wrote the majority opinion upholding the UT policy.

In it, Steve Vladek, a member of the faculty at the University of Texas School of Law, elaborates on the Kennedy puzzle.

It’s hard to view today’s ruling in the second Fisher v. University of Texas at Austin, in which the Court upheld the University of Texas’s race-conscious admissions program by a four-three vote, as anything other than a stunning surprise. For starters, in his twenty-eight years on the Supreme Court, Justice Anthony Kennedy had never previously voted to uphold a race-based affirmative action program against a constitutional challenge. Add to that the bottom line of the Supreme Court’s 2012 ruling in Fisher I – which seemed to be a not-so-thinly-veiled hint to the court of appeals that a majority of the Justices had serious qualms with the constitutionality of the UT approach, one which the Fifth Circuit politely ignored on remand in reaffirming its earlier decision. Then there was the subsequent grant of certiorari by an eight-Justice Court in Fisher II (with the recusal of Justice Elena Kagan), a move that would’ve been odd if, with Justice Antonin Scalia, the remaining eight Justices were evenly divided. And finally, there was the oral argument last December, in which Kennedy repeatedly expressed frustration “that the litigants, and frankly this Court, have been denied the advantage and the perspective that would be gained if there would be additional fact-finding under the instructions that Fisher [I] sought to give. And that just – we’re just arguing the same case. . . . It’s as if nothing has happened.”

Reasonable minds can and will surely disagree over the persuasiveness of this reasoning – including, as in Justice Samuel Alito’s dissenting opinion, at length. But what cannot be denied is the oddity of its authorship or its potential doctrinal impact going forward. Coming from the same Justice who so fervently dissented in Grutter, and who had never previously seen a race-conscious admissions program he liked (including this very same program in Fisher I), the most interesting question that Fisher II raises is not how it will impact affirmative action plans going forward (since the real answer to that question may rest in the hands of Scalia’s successor), but what led to Kennedy’s change of heart here – and when.

The admirable website Scotusblog has been having an online symposium on the Fisher II ruling. Those who oppose affirmative action are bitterly disappointed. Richard Kahlenberg calls the decision a “shocker” and says that the main beneficiaries of affirmative action are wealthy students. Stuart Taylor says that unless two strong opponents of affirmative action are added to the bench, this marks the end of their efforts but Elizabeth Slattery seems to think other new cases may bring the issue up again.

Justice Kennedy seems to have infuriated opponents of affirmative action with what seems like a switch in his thinking and this, coupled with his recent deciding vote in affirming the right of same-sex couples to marry, will not endear him with many conservatives in the current political climate in which, as Amanda Marcotte writes, white resentment that they are being treated unfairly is being strongly exploited, even if the facts were not their side in this case.

Fisher’s case before the Supreme Court, in which she demanded that she be admitted to the University of Texas at Austin despite not having the grades to get in, confirmed every liberal suspicion about the opposition to affirmative action, namely that it’s not about “equality” at all, but about making sure white people are always first in line, ahead of all people of color, for job and education opportunities.

In 2008, 47 such students were admitted who had lower grades or test scores than Fisher. Forty-two of them were white. Only five were people of color.

Fisher and her lawyer Blum were not challenging the admission of the 42 white students.

Instead, Fisher’s argument was narrowly that she should have been admitted instead of one of those students of color. It was the case that collapsed any distinction between opposing affirmative action and demanding that white people be given preference.

But, even though this ruling is really narrow and does little to truly increase diversity at universities, Justice Samuel Alito issued a lengthy, blistering dissent that accused the school of paying “little attention to anything other than the number of minority students on its campus and in its classrooms.”

It’s an argument that depends on wholly ignoring the 42 out of 47 students who are white who got in despite having lower grades than Fisher’s. Like Fisher and Blum, Alito simply assumes that the white students have merit and the students of color do not.

I think that at least as far as college admissions go, the issue is settled for some time.


  1. Matt G says

    Thomas, as someone who has benefited from affirmative action, should also have recused himself.

  2. Crimson Clupeidae says

    I think, unless one has been directly involved in the case at hand, a justice should not feel the need to recuse oneself. Otherwise, very few cases would even get a ruling from all 9 judges (if they were honest about it). Everyone has probably been ‘affected’ by AA in some way or another.

  3. Matt G says

    One of the (many) things about Thomas that bothers me is that he took advantage of every program available to him as a black person to get educated and build his career, and then used that career to gut those programs when he could. He climbed the ladder of success and then tried to pull the ladder up after him.

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