There was very little suspense animating the crowd gathered to hear oral arguments in Fisher v. University of Texas, a case that could potentially end affirmative action in public university admissions. Only a smattering of protesters rallied outside the Courthouse. Lawyers who arrived only an hour-and-a-half before oral arguments still received seats in the Courtroom — much to the chagrin of other attorneys who arrived much earlier because they expected longer lines. The Court’s conservative majority has long been expected to take the ax to affirmative action, and only the bloodthirsty and the ghoulish enjoy watching an execution.
And yet, over the course of the more than an hour of oral arguments, a ray of hope emerged for affirmative action supporters. Justice Anthony Kennedy is no fan of affirmative action, but he spent much of the oral argument groping towards a way that would delay its demise just a little longer.
Most of the justices lined up along highly predictable lines. Chief Justice John Roberts openly mocked the idea that diversity is a virtue in education, at one point asking somewhat incredulously what benefit diversity offers in a physics class. Justice Antonin Scalia argued that some studies show that black students do not do well at elite universities and are better off at inferior schools. Justice Samuel Alito is Justice Samuel Alito.
Meanwhile, three liberal justices offered their best defense of the University of Texas’s admissions program, though they were fighting left-handed all morning. Justice Elena Kagan, probably the Court’s best questioner, is recused from the case and her seat sat empty during the entire argument.
That leaves Kennedy. In Rob Reiner’s classic film The Princess Bride, Westley, the male protagonist, is captured by an unseen villain known only as the Dread Pirate Roberts. Though the pirate has a reputation for mercilessness, he keeps Westley alive, each night telling him the same thing — “Good night, Westley. Good work. Sleep well. I’ll most likely kill you in the morning.”
Wednesday morning, at the Supreme Court, the role of the Dread Pirate Roberts was played by Justice Anthony Kennedy.
The Dread Pirate Tony typically shows very little mercy towards affirmative action. In 2003’s Grutter v. Bollinger, Kennedy dissented from the Court’s 5-4 decision upholding a University of Michigan plan that resembles the Texas plan at issue in Fisher. When Justice Sandra Day O’Connor, the author of the majority opinion in Grutter, was replaced by the much more conservative Alito in 2006, affirmative action was widely expected to be one of the first casualties.
Yet it has survived this long, largely because of Kennedy’s hand wringing. The Fisher case first reached the Supreme Court in 2012, and after oral arguments in that case it was clear that Kennedy’s views had changed very little after Grutter. Indeed, at one point, Kennedy accused the University of Texas of creating an admissions program where “race counts above all”, despite the fact that race is actually a very minor factor in UT’s admissions policies that is only considered for a small minority of applicants.
Indeed, Kennedy reportedly voted to strike down UT’s policy during the 2012 term, only to get cold feet after Justice Sonia Sotomayor penned a strongly worded dissent defending race-conscious admissions. Eventually, Justice Stephen Breyer brokered a deal that led to a 7-1 decision asking the conservative United States Court of Appeals for the Fifth Circuit to take another look at the case.
“Good night, affirmative action,” the Dread Pirate Tony might as well have said. “Sleep well. I’ll most likely kill you in the morning.”
Three years later, after the Fifth Circuit surprised many observers by upholding UT’s admissions program again, the case is back in front of the Supreme Court. And, once again, Kennedy seemed to be looking for ways to put off its execution until another day.
At multiple times during the argument, Kennedy floated the possibility of sending the case back down to a trial court (a practice known as “remanding”) so that it can gather additional facts to determine whether there is any other methods UT could have used to achieve a more diverse student body. Scalia immediately balked at this idea, insisting that the university had an obligation to present whatever evidence it wanted to present the first time around, but Kennedy returned to the idea of a remand several times. This would, of course, be more or less the same tactic Kennedy used the first time Fisher was before the Court, although this time he’d be remanding the case even further down the judicial hierarchy.
“I’ll most likely kill you in the morning,” could be the holding of Fisher II just as it was in Fisher I.
So supporters of affirmative action had a much better day today than they were probably expecting, but there’s one piece of bad news that they should bear in mind as well. The Princess Bride was a fairy tale. Here in the actual world, pirates really do kill people. And here in the actual world, Kennedy remains highly skeptical of affirmative action programs. At one point, he asked whether Texas’s program functions like a “quota” — an especially toxic word for a justice to use in the affirmative action context. At another point, he joined Alito in questioning what additional diversity benefits UT gains from the students admitted through a race conscious system that it does not already gain from the majority of students who are admitted through a different system. The problem with sleeping on a pirate ship every night is that, one night, the pirate captain may actually decide to kill you.
But Kennedy’s ambivalence does still suggest that there is some breathing room between his view and that of his fellow conservatives. The holding of Grutter was that “‘classroom discussion is livelier, more spirited, and simply more enlightening and interesting’ when the students have ‘the greatest possible variety of backgrounds,’” so universities may legitimately tailor their admissions policies to achieve such diversity. Though Kennedy dissented in Grutter, he did concede that “our precedents provide a basis for the Court’s acceptance of a university’s considered judgment that racial diversity among students can further its educational task, when supported by empirical evidence.”
As Roberts’ mocking question about diversity and physics classes suggests, it’s far from clear that Kennedy’s fellow conservatives believe that diversity is a worthy value at all in an educational setting — or, at least, that it is a value that can possibly justify consideration of race. That’s a more hard line view than Kennedy’s.
The open question is whether there is enough daylight between Kennedy and Roberts to allow affirmative action to see another morning.