The Supreme Court And Affimitve Actiction

In its ruling today in Fisher v. University of Texas at Austin, the Court preserved Grutter’s core holding that “obtaining the educational benefits of ‘student body diversity is a compelling state interest that can justify the use of race in university admissions.’”   One might have predicted that Justice Kennedy would write the majority opinion.  But I doubt that anyone predicted the seven-to-one line-up (with Justice Kagan recused and Justice Ginsburg as the sole dissenter) or that there would so little in any of the Court’s opinions to surprise us.   Yet this near unanimity and the lack of significant change in higher education affirmative action law is precisely what might be noteworthy about Fisher.  Along these lines, two aspects of the Court’s decision are worth exploring: the relative brevity of the majority opinion and the significance of the remand.

By Olatunde Johnson 

Olatunde Johnson is a professor of law at Columbia University Law School

What you think about yesterday’s affirmative action ruling can depend on your perspective.  I don’t mean your ideology.  Instead, how the decision looks depends on the lens through which you view it – literally, your perspective.

Take the decision as one case at one moment in time: a data point.  By a broad majority, the Court applies real limits on affirmative action.  The courts must carefully review the government’s claim that it has no race-neutral way to achieve its goals for diversity in education.  Standing on its own, that is a solidly conservative ruling. 

Now look instead at the decision as part of a line across time.  As the Court has moved right, so have its decisions on race.  When Justice Alito succeeded Justice O’Connor, it seemed poised to severely limit affirmative action – maybe permitting it in name only.  Nothing like that happened yesterday.  From that perspective, the ruling seems much more moderate.  Given the likely alternative, liberals were ecstatic.

Now consider the ruling as the Justices do:  in three dimensions, as a part of the body of cases about the Constitution they consider over the years.  Here, the picture is incomplete.  We do not have all the decisions from this Term, or obviously from the years to come.

But we can say that the decision shows the Court functioning incredibly well, and willing to compromise.  It is not easy to craft a ruling on affirmative action joined by both Chief Justice Roberts and Justice Sotomayor.  They spoke with clarity and without bitterness.

And everyone got something.  The conservative Justices avoided a losing fight over whether the Court would reaffirm its deference to the government’s judgment about the need for diversity.  The more liberal Justices dodged a definitive ruling that the Texas plan was unconstitutional.

But I bet the ruling will look a little different as the three-dimensional picture gets filled in.  The Court has two other big race-related decisions on its plate.  A ruling on Section 5 of the Voting Rights Act is imminent.  And the Court put off until next Term the question whether fair housing claims can be based on the theory of “disparate impact” – i.e., unintended discrimination – a hot-button ideological question.

As an institution, the Court obviously prefers not to be caricatured as hostile to the claims of minorities.  If it were to both severely limit affirmative action and also strike down a central provision of the Voting Rights Act and then eliminate an important class of fair housing claims, all in pretty short order, that body of decisions would have looked hostile to civil rights claims.  Now the ruling as a whole appears quite balanced.

By: Tom Goldstein, 3D, SCOTUSblog (Jun. 25, 2013, 8:30 AM), http://www.scotusblog.com/2013/06/3d/