Monday, June 24, 2013
As indicated in my first post, the Court neither upheld nor struck down the Texas plan, but rather said the lower court was too deferential in reviewing Texas' admission policy. Thus, the lower cout must take another more rigorous review of the plan. Because the Court did not affirm the lower court and uphold the plan, the result in Fisher suggests hostility to affirmative action. But many, if not most, affirmative action advocates would have expected much worse, particularly if they knew Kennedy would write the majority opinion. With Kagan on the sidelines, there was no way to 5 votes to uphold the plan in its entirety, even if the three liberals could convince Kennedy.
The final opinion, moreover, was not even close. It was 7-1 in overturning the court of appeals and sending it back. That Sotomayor and Breyer signed onto the majority opinion, and only Ginsberg dissented, sends a different message than one would have expected with Kennedy in the majority: Fisher is not the end of affirmative action in higher education. Justices Breyer and Sotomayor would have never signed onto to the end of affirmative action, but they signed onto this opinion. This suggests a lot of jockeying behind close doors to save affirmative action in higher education, but in an indirect way.
My best guess in reading the opinion is that initial vote as to whether to overrule Grutter (even though the Court says that was not before it) and/or strike down the Texas plan on its facts was 4-4, with Kennedy in the dissent, which was my best case scenario heading into the case. This 4-4 initial vote is a relatively solid thesis now. In the case of a 4-4 tie, the lower court would have been upheld and nothing at all would have changed. This clearly would have incensed the 4 most conservative members of the Court. And even though Justice Kennedy may not have been prepared to completely end affirmative action, maintaining the status quo was not his desire either. My hope and intuition was that he would hate the end of affirmative action more than the continuation of the status quo. But, of course, he is smarter than me and the final opinion and vote in Fisher suggests a compromised third position: join the majority and bring 2 dissenting liberals with him, so that he could write the majority. This had the effect of putting Scalia and Thomas in the disgruntled concurring camp, rather than squarely in control of the majority.
And that is how sausage and Supreme Court opinions are made (I assume, since I know nothing of either).