June 24, 2013 10:45AM

Narrow Victory for Judicial Review, Punt on Racial Preferences

The Supreme Court, by a 7–1 majority, correctly slapped down the lower court for deferring to the University of Texas regarding the use of race in admissions. It punted, however, on the larger question of whether that use of race is constitutional, instead instructing the Fifth Circuit to reconsider the issue under a less deferential standard of review, what lawyers call “strict scrutiny.”

While it’s gratifying that the Court recognized that the judicial branch must exercise independent judgment on constitutional questions, it’s unfortunate that it even gave UT‐​Austin a chance to further its claim. As Justice Thomas wrote in his concurrence, the use of racial classifications in university admissions is abhorrent to the idea of equal protection of the laws.

In short, this is a narrow victory for judicial engagement and subjecting government action to judicial review, but the Court avoided an opportunity to advance liberty without regard to race.