Mark Pulliam Jun. 28, 2016, 1:53pm


This column first appeared on June 28 in Library of Law and Liberty

The cowardice of Fisher II suggests that Justice Anthony Kennedy fears another confrontation by the “Wise Latina.”

Justice Anthony Kennedy’s milquetoast 4-3 opinion in Fisher v. University of Texas (Fisher II) has been lambasted from all directions as “a devastating blow to the cause of a color-blind Constitution” (by John Yoo), a “logical pretzel” (by the Wall Street Journal), and a “hedgy, compromise opinion” representing a “pyrrhic victory” for UT that “paves the way for more lawsuits against more universities in the future” (by The Daily Beast). The most damning criticism, however, was mounted by Justice Samuel Alito, whose blistering 51-page dissenting opinion begins with these words: “Something strange has happened since our prior decision in this case.”  Something strange, indeed.

The background of Fisher II (summarized here, here, here, and here) is deceptively simple. When the U.S. Supreme Court granted cert in the first round of Abigail Fisher’s challenge to UT’s race-conscious “holistic” admissions process (Fisher I) in early 2012, many court watchers were hopeful that the Court intended to overrule Grutter v. Bollinger (2003), an inscrutable 5-4 decision written by Justice Sandra O’Connor that upheld the University of Michigan’s use of racial preferences in admissions based on the fanciful notion that race discrimination can be justified if necessary to realize the “educational benefits” of diversity in higher education. Kennedy, a lifelong opponent of racial preferences, dissented. When O’Connor retired in 2006 and was replaced by Alito, a critic of affirmative action, it appeared that the Grutter dissenters had the votes to overturn the decision. (Chief Justice William Rehnquist, who also dissented in Grutter, was replaced by the likeminded Chief Justice John Roberts.) Moreover, UT’s race and ethnic preferences, unlike the policy upheld in Grutter, supplemented a race-neutral admissions process (the so-called Top Ten Percent Law) that already produced a diverse student body at UT. Conventional wisdom, based on the grant of cert, was that UT’s “policy could be in real danger; the only remaining question is whether the Grutter decision is as well.”

Accordingly, observers were shocked when the Court, in 2013, issued a 7-1 decision in Fisher I (written by Kennedy, Justice Elena Kagan abstaining), that neither invalidated UT’s “holistic” admissions process nor overturned Grutter; instead, the Court simply remanded the case to the Fifth Circuit for reconsideration.  The majority concluded that the Fifth Circuit has failed to apply Grutter correctly, by inappropriately deferring to UT and by not applying the demanding “strict scrutiny” standard to require UT to prove that its consideration of race was “necessary” and “narrowly tailored.” What had happened?

One theory, based on insider reports at the Court, is that a five-justice majority in Fisher I was prepared “to strike down the UT program and restrict affirmative action nationwide,” according to Joan Biskupic, author of the 2014 book Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice. Biskupic’s research indicates that Kennedy, writing for the initial 5-3 majority in Fisher I, changed course to placate Justice Sonia Sotomayor, who had circulated a “scathing dissent that led the majority to back down.” Sotomayor’s proposed dissent, “suffused with the personal experience of her Puerto Rican Bronx background,” denounced “the majority’s attitude toward race and racial policy. The tone from the nation’s first Latina justice: You haven’t lived it and you don’t get it.” Biskupic’s account states that “Kennedy wanted to lower the temperature among the justices …. Kennedy amended his opinion to allow the UT program to stand—temporarily at least—and to return the case to the Fifth Circuit for another review…. Sotomayor filed away her draft dissent, and she and [Justice Stephen] Breyer signed Kennedy’s opinion.” Thus the calculatedly tame 7-1 opinion.

This could easily be a scene from Tom Wolfe’s classic article, “Mau-Mauing the Flak Catchers,” in which he describes hapless bureaucrats in a San Francisco welfare office being intimidated by savvy race hustlers who cynically exploit the well-meaning functionaries’ white guilt to extract concessions. As in Wolfe’s farcical vignette, reprinted in his 1970 book Radical Chic & Mau-Mauing the Flak Catchers, the flak catchers’ concessions are pointless because the hustlers never hold up their end of the bargain. In Sotomayor’s case, she filed her strident dissent anyway, in the later case Schuette v. Coalition to Defend Affirmative Action (2014), in which the Court upheld Michigan’s statewide ban on affirmative action. So much for “lowering the temperature.”

After the remand in Fisher I, UT presented no new evidence. The case was re-argued on the existing record. The Fifth Circuit once again perfunctorily rubber-stamped UT’s race-conscious “holistic” process (this time with a dissenting opinion by Judge Emilio Garza). UT’s stated rationale for supplementing the Top Ten Percent Law (which grants automatic admission to the top graduates of the state’s high schools, mainly benefiting urban and rural minorities)—that the “educational benefits” of diversity depend on having the right socio-economic mix of minorities—was devoid of support in the record. UT had done nothing to shore up its vulnerability in Fisher I. Texas’s other major state university system, Texas A&M, does not supplement the Top Ten Percent Law with a race-conscious “holistic” process. UT insisted that the neutrally-drawn complement of minorities did not comprise the necessary “critical mass” because it did not include affluent minorities from the suburbs. Judge Garza mocked UT’s position as advocating “diversity within diversity” and called UT’s arguments “subjective, circular, or tautological.” And UT had no explanation for why the enhanced presence of only certain minorities—not including Asians—generated “educational benefits.” Diversity, it seems, is a “secret sauce” known only to UT admissions officers.

So when the Court granted cert again, in Fisher II, hopes were high that UT’s program would be declared unconstitutional at last. Other developments subsequent to Fisher I militated against UT. UT Austin President Bill Powers was forced to resign in a scandal regarding his role in a backdoor admissions system for influential donors and legislators. An outside investigator, Kroll, Inc., concluded that Powers and his staff had misled an prior internal inquiry by failing to disclose the secret crony system, and thereby “failed to speak with the candor and forthrightness expected of people in their respective positions of trust and leadership.”

And yet, in Fisher II, for the first time in his career on the Court, Kennedy voted in favor of racial preferences, writing an opinion that left Grutter (from which he dissented) in place and which retreated from the lofty commands of Fisher I (which was the watered down compromise he made in exchange for Sotomayor abandoning her intemperate dissent—which she later issued anyway). And all the unpleasantness about the Kroll report and the admissions scandal at UT?  Ignored.  Kennedy’s opinion is an embarrassing mess. The Wall Street Journal termed it “tortured,” and accused Kennedy of “gutting his own precedent” and lacking “the courage of his self-stated convictions.” Ouch. Professor John Yoo called Kennedy’s appointment to the Court Ronald Reagan’s “longest-lasting mistake as president.”

Alito’s dissent is a merciless (but well-deserved) trip to the wood shed. Alito exposes the incoherence, flaccid reasoning, oversights, and intellectual dishonesty necessary to uphold, under the “strict scrutiny” test, the same arguments, and the same record, that the Court rejected three years ago. The only plausible explanation for Kennedy’s change of position is that he wanted to avoid another confrontation with Sotomayor. Like the cowardly bureaucrats lampooned by Tom Wolfe, Kennedy shrank beneath the mau-mauing of Sotomayor. Without courage, judges—including Republican appointees—often fall “sway to the siren song of the academy and the media.”

Kennedy may be grooming himself for the history books, thinking that his newly-found progressive views will burnish his judicial legacy. If so, he is sadly mistaken. His nearest role model, Justice Harry Blackmun, achieved eternal obloquy for his authorship of Roe v. Wade (1973). Kennedy will be forever remembered for Obergefell, Fisher II, and the “mystery passage” in Planned Parenthood v. Casey, an activist trifecta. In the dubious sweepstakes for “Most Disappointing Republican Appointee to the Supreme Court,” Kennedy is rapidly closing in on Justice William Brennan.

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