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| Pete Marovich/Bloomberg/Getty Images |
JEFFERY TOOBIN, NEW YORKER
Affirmative action lives. That’s the emphatic message of the Supreme Court’s decision today in Fisher v. University of Texas at Austin, which found that an affirmative-action plan that considers race, among other factors, in college admissions is constitutional....Justice Anthony Kennedy wrote the opinion, even though he has been consistently skeptical of affirmative action during his long tenure on the Court.
As Kennedy wrote, “enrolling a diverse student body promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” That will be true indefinitely....The practical significance of the Court’s decision is difficult to overstate. The Fisher case has been pending for eight years and was argued twice before the Court. Through all this time, the future of affirmative action has been an open and unresolved question. Kennedy has now put the issue to rest for the foreseeable future. This is a great gift to university-admissions officers, who can act with some confidence that they may consider race as one among many factors, but, more importantly, it’s a gift to their institutions. American universities, and the country, will be better off for today’s decision.
Kennedy values his place as the swing Justice on the Court, and it’s possible to see in his opinion a recognition of which way the Court is heading. The Justices are divided in much the same way the country is: four Democratic appointees, and four Republican ones. President Obama has nominated Merrick Garland to fill the vacancy left by Antonin Scalia’s death, but the Republicans in the Senate have refused even to hold hearings for him, let alone a vote. This defiance of congressional and constitutional norms is outrageous, and it’s also revealing. Mitch McConnell, the Senate Majority Leader, and his fellow-Republicans see a Presidential election slipping away from their party, and they have made the reasonable calculation that some Democrat—Obama or Hillary Clinton—will fill Scalia’s seat. So the Republicans are postponing a five-to-four Democratic majority on the Supreme Court for as long as they can. But that doesn’t make that majority any less inevitable.
The four Democratic appointees have consistently embraced the notion that all institutions are strengthened, not weakened, by diverse membership (as have, for the most part, the American people). That view will surely be in ascendance in any Democrat-dominated Supreme Court. Kennedy could fight that coming wave or try to stay ahead of it. He did the latter, which both honors him and ennobles the country.
Of course, Kennedy and the rest of the Justices are human, and their views sometimes veer in unpredictable and unfortunate directions. Sadly, Kennedy also joined his fellow Republican Justices in blocking the President’s immigration plan, which would have allowed some five million undocumented immigrants who are the parents of citizens or permanent residents to apply for work permits in the United States. But the direction of the Court is clear, and on affirmative action, at least, Kennedy chose to lead the way rather than fight a losing battle from behind.
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| Abigail Fisher sued the University of Texas over its affirmative-action policy after she was rejected.PHOTOGRAPH BY SUSAN WALSH / AP |
DAVID COLE, NY REVIEW OF BOOKS
With the continued vacancy of Antonin Scalia’s seat, this year’s Supreme Court term has been less consequential than many, and certainly less than it might have been. The Court has avoided deciding the merits of some controversial cases, such as a religious freedom challenge to Obamacare, which it returned to the lower courts in hopes of a settlement. It has accepted fewer new cases for review. And it has divided 4-4 on others, leaving lower court decisions in place but making no law (and issuing only a cursory statement that no majority opinion could be reached)—as it did Thursday in a challenge to President Obama’s immigration plan. That particular decision was consequential indeed for the nearly five million undocumented immigrants to whom Obama sought to extend relief, as it allowed a 2-1 vote in a court of appeals to block one of the president’s most important initiatives. As former solicitor general Walter Dellinger commented, “seldom have the hopes of so many been crushed by so few words.”
But on the long-disputed matter of affirmative action, the Court on Thursday issued a very important—and surprising—decision, when it upheld the University of Texas’s program.... The question presented by the Texas case was whether, having achieved some minority representation through the use of a “Top Ten Percent Plan” that guaranteed admission to any student who finished in the top 10 percent of his or her high school class, the university could consider race as a modest factor in a holistic review of those applicants who did not obtain admission through high school class rank. Race was considered along with many other attributes, including extracurricular activities, athletic or musical prowess, socioeconomic status, and family background.
The decision is all the more striking since, on matters of race, the Supreme Court and the real world have often seemed to inhabit separate spheres. Our newspapers, smartphones, and nightly news programs are filled with accounts of young black men being abused or killed by police—who are then often difficult to prosecute. Our prison populations are disproportionately dominated by black and Hispanic men, often serving unconscionably long sentences for nonviolent offenses. And students on college campuses across the nation have been protesting the underrepresentation of minorities among faculty and the student body, and the racial isolation that results. Yet a majority of the Supreme Court has been deeply committed to an abstract vision of color-blindness, deeming it just as suspect to consider race in order to right entrenched wrongs as to subordinate minority groups. Nowhere has the divide between the Court’s view and that of most of the rest of the world been more evident than with respect to affirmative action in higher education. Here, the Court has long insisted that any use of race in the admissions process must satisfy the same “strict scrutiny” that applied to programs that excluded blacks from white schools, swimming pools, and railroad cars, as if there is no moral difference between seeking to aid and to harm disadvantaged groups.
Read more at DAVID COLE, NY REVIEW OF BOOKS