by Michael Dorf
At the end of a Supreme Court term, the law clerks put on a show in which they depict the justices, gently (or not so gently) poking fun at their bosses' personal foibles and jurisprudence. These are not public events and so what we know about them comes from leaks from a very unleaky institution. Nevertheless, a story is told that one year the law clerk portraying Justice Sandra Day O'Connor sang a song to the tune of the Rolling Stones' "Beast of Burden" with the lyrics "I've never seen an undue burden." The idea was that although Justice O'Connor's concurring and dissenting opinions in abortion cases had suggested that abortion restrictions would be invalid if they constituted an "undue burden," she had voted to uphold every abortion restriction to come before her. And that was true, until 1992 when she joined with fellow Republican-appointed Justices Anthony Kennedy and David Souter to co-author an opinion (joined in key parts by two other Republican-appointed Justices, Harry Blackmun and John Paul Stevens) striking down one provision of a Pennsylvania abortion law as an undue burden. We will find out next week whether the version of the undue burden test adopted in that case--Planned Parenthood v. Casey--invalidates the Texas law being challenged on the ground that its health justifications are pretextual at best. But for now I want to note that what happened in Casey for Justice O'Connor was a put-up-or-shut-up moment. Having led Court watchers to think that she was at least potentially open to retaining abortion as a constitutional right, Justice O'Connor finally got off the fence and proved it.
While we wait for the Texas abortion case to come down (probably Monday of next week), let us turn our attention to another Texas case. Not the anti-climactic non-decision in the immigration case that leaves millions of undocumented immigrants in the shadows until there is a ninth justice appointed by President Clinton or President Trump's storm troopers round them up, but the dramatic ruling this morning in Fisher v. University of Texas at Austin (Fisher II).
With Justice Kagan recused in Fisher II, the Court ruled 4-3 that the limited use of race in admissions by UT is constitutionally permissible. The majority opinion in Fisher was written by Justice Kennedy, and the case was for him with respect to affirmative action what Casey was for Justice O'Connor with respect to abortion (although Casey was also that for Justice Kennedy). In prior affirmative action cases--especially in his dissent in Grutter v. Bollinger and his concurrence--concurrence in the judgment in Parents Involved in Community Schools v. Seattle School Dist. No. 1--Justice Kennedy had said that he accepts that diversity is a compelling interest in education and that he was unwilling to treat the Equal Protection Clause as proscribing all use of race by government. But like Justice O'Connor with respect to abortion in her pre-Casey days, Justice Kennedy sometimes gave the impression that he was all talk, because before today, he voted to strike down every race-based affirmative action program to come before him as a Justice.
Before today. Justice Kennedy's opinion in Fisher II will no doubt be read as narrow, and in important ways it is. He warns at the end that UT should not take the Court's decision as authorization to use its existing program indefinitely. The evaluation and re-evaluation of the need for race to achieve the university's goals that play a crucial role in rejecting Fisher's challenge must continue. Other colleges and universities are now on notice that they too may need to be pro-active in continually reassessing the use of race in their admissions programs.
That said, Justice Kennedy's opinion is, in many ways, quite broad. He repeatedly points out that the "Ten Percent" program in Texas makes the case unusual. (Quotation marks indicate that with a 75% cap on enrollment under the program, it's now more like a seven percent program.) Perhaps more importantly, Justice Kennedy favorably cites Justice Ginsburg's observation in the first Fisher case (Fisher I) that while formally neutral, the percentage plan was “adopted with racially segregated neighborhoods and schools front and center stage.” This is an important signal that the Court will not require state universities to adopt percentage plans or to try them before resorting to holistic review that includes race.
In addition, Justice Kennedy recognizes how the Court's prior cases set up a seeming Catch-22. On the one hand, if race is too big a factor, then the program is not narrowly tailored. On the other hand, if its use only makes a small difference, then the program is also not narrowly tailored. Justice Kennedy rejects this heads-I-win-tails-you-lose rule, treating the relatively modest use of race by UT as appropriate and as evidence that UT really is trying to achieve diversity through race-neutral means as much as possible. Likewise, Justice Kennedy does not fault UT for failing to precisely quantify such goals as diversity or critical mass, rightly recognizing that this too is a trap, given how unfavorably the Court's prior cases treat any effort to convert the benefits of racial diversity into a number.
Justice Alito is thus not wrong in his dissent when he says that UT failed to meet an apparent requirement of Fisher I. Justice Alito writes: "The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve." But given that this is a trap, to the extent that Fisher I required such "specificity," i.e., quantification, Justice Kennedy is surely right in Fisher II to move away from such a requirement. Justice Alito's conception of a specificity requirement is really nothing more than a way to disguise a rule that categorically disallows race-based affirmative action. But if that's the point, then he (and CJ Roberts) ought to say so expressly, by joining Justice Thomas, whose separate dissent calls for categorical color-blindness.
To be fair, although Justice Alito and CJ Roberts have previously purported to apply Grutter, they have never said that they think it was rightly decided. Justice Kennedy did, after a fashion. Although he dissented in Grutter because he thought that the University of Michigan Law School's program was not actually narrowly tailored, he agreed in principle that diversity in higher education is a compelling interest that can justify a narrowly tailored program of race-based affirmative action. He paid what was at least lip service to that idea, which has now been part of our law for 38 years (since the Bakke case). Today, Justice Kennedy showed that it was more than lip service. His Fisher II opinion puts his vote where his rhetoric was all along.