How Far Will Justice Kennedy Go?

Coming out of oral argument in Fisher v. UT-Austin, I have a frustrating sense of déjà vu all over again. Not simply because this is the second iteration of Abigail Fisher’s plea not to be judged by skin color, but because every time the Supreme Court takes up affirmative action both sides talk past each other and the issue is (not) resolved by a mushy baby-splitter like Justices Lewis Powell or Sandra O’Connor. Regardless of what the particular legal issues may be, one side pushes racial preferences forever (for whatever reason, currently “diversity”) and the other says never (because the way to stop racial discrimination is to stop discriminating on race). The ultimate ruling inevitably rejects the specific use of race at issue but keeps the door open for future uses – chasing some Goldilocks ideal of “race consciousness” but not too much.

Fisher II is no different. I’ll let others provide detailed exegeses of the justices’ repartee, but the bottom line is that there aren’t any surprises here. With Justice Elana Kagan recused, there’s a reduced three-justice liberal bloc staunchly in favor of UT-Austin’s holistic review (which Cato’s brief assails as being a black box that can’t pass the smell test, let alone strict scrutiny). Conversely, I heard nothing from Chief Justice Roberts or Justices Scalia/Thomas/Alito that would support the university. For that matter, Justice Kennedy – who dissented in the University of Michigan case of Grutter v. Bollinger (2003) that was Fisher’s precursor – didn’t say anything to indicate he would approve UT’s admissions program either, though at one point suggested that a remand for fact-finding might be appropriate (Later, he all but rejected that idea).

So we wait to see how broadly Kennedy wants to go. Will he merely vote to strike down the use of race in the admissions decisions complementing UT’s Top 10 program, or will he cast doubt on the use of race in educational administration altogether? Will he tighten the judicial standard of review that the Court set in Fisher I – making it essentially impossible to meet – or will he throw bones to both sides in a way that again avoids changing the status quo?

At some point, the Supreme Court has to realize that the hallowed “diversity” interest is both pretext and ephemera, and that an admissions program that uses race in a constitutional manner is a self-contradicting proposition. I don’t know if that day will come next June when Fisher is decided, but my fervent hope is that Justice Kennedy pushes his own jurisprudence further in that direction.