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Monday, June 24, 2013

Beldar's instant analysis of today's SCOTUS ruling in Fisher v. University of Texas

You will see lots of press today about the United States Supreme Court's decision this morning in Fisher v. University of Texas at Austin, which was widely anticipated to be the biggest development in affirmative action law since Grutter v. Bollinger and Gratz v. Bollinger, the University of Michigan cases from 2003.

A lot of that press commentary will be wrong, and quite a bit of it will be both wrong and biased.

I therefore submit to you this quote, which comes not from the majority opinion itself, but from the official court syllabus. It's dense stuff, but those of my readers with legal training can figure out exactly what happened just from this paragraph-plus-one-sentence (citations omitted):

... The [federal appellate courts] must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.

Rather than perform this searching examination, the Fifth Circuit held petitioner could challenge only whether the University’s decision to use race as an admissions factor “was made in good faith.” It presumed that the school had acted in good faith and gave petitioner the burden of rebutting that presumption. It thus undertook the narrow tailoring requirement with a “degree of deference” to the school. These expressions of the controlling standard are at odds with Grutter [v. Bolliger]’s command that “all racial classifications imposed by government ‘must be analyzed by a reviewing court under strict scrutiny.’” Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice, yet that is what the District Court and Fifth Circuit did here. The [Supreme] Court vacates the Fifth Circuit’s judgment. But fairness to the litigants and the courts that heard the case requires that it be remanded [i.e., sent back to the lower courts] so that the admissions process can be considered and judged under a correct analysis. In determining whether summary judgment in the University’s favor was appropriate, the Fifth Circuit must assess whether the University has offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.

For those of you who lack legal training, I will now give you my hipshot reaction. Others will and do disagree, and your mileage may vary. (Mixed metaphor warning! Beware!)

This is, in both form and substance, a loss for the University of Texas in this case, and for those who support race-based preferences more generally. But it is a mostly-procedural loss, not a blockbuster opinion. It is a signal of things to come, but not an earthquake.

Instead of announcing some big new substantive rule that will turn all affirmative action law on its head, the majority chose to emphasize the way the ballgame was supposed to be refereed by the district and circuit courts. My rough paraphrase: "You ignored the rules we told you about before, so go back and do it the right way, paying attention to those rules and leaving tracks showing you did so." And that's very, very different from saying, "We're changing all the rules!"

And the majority's choice to play small-ball rather than swing for the fences is also probably why it's a seven/one decision, with only Justice Ginsburg dissenting (very briefly and somewhat mildly). I seriously doubt we'd have seen Justices Breyer and Sotomayor going along with a more substantive and sweeping ruling.

My hunch is that this limited-scope decision is largely Chief Justice Roberts' doing, part of a deliberate strategy being played out over years and, indeed, presidencies. The narrower, more procedural ruling certainly was likely to have been more useful in keeping Justice Kennedy aligned with the Chief and Justices Scalia, Thomas, and Alito; or, stated the other way, Justice Kennedy might have been more likely to bolt if the other conservatives all wanted to go the route recommended by Justice Thomas (overruling Grutter outright).

But my guess — utter speculation, mind you — is that the Chief was content to use this case as an intermediate step, a signal of a greater SCOTUS skepticism about racial preferences, but something that still measures pretty far down on the jurisprudential Richter scale.

Note well that Justice Kagan's recusal turns into a non-event with the 7/1 margin. By assigning this opinion to Justice Kennedy to write (even with a narrower, more procedural ruling), the Chief has pulled Justice Kennedy a bit farther into the conservative camp on this particular issue. And if the next case breaks back down into a more traditional and predictable 5/4 split (with Justice Kagan joining Justices Ginsburg, Breyer, and Sotomayor in upholding racial preferences), there will nevertheless be a clear, single majority opinion with strong precedential value (at least relative to the kind of split decision mess we've so often seen on these cases, Bakke being the poster child for SCOTUS dysfunction).

Posted by Beldar at 10:26 AM in Law (2013), SCOTUS & federal courts | Permalink


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(1) Beldar made the following comment | Jun 24, 2013 11:14:19 AM | Permalink

Editing note: Just changed "huge majority of that press commentary" to "lot of that press commentary." Some of the early press reports I'm reading are getting at least the basics right, but then again, the spin-meisters are still writing their press releases, so their droogs in the Fourth Estate don't know what to say yet.

(2) Beldar made the following comment | Jun 24, 2013 11:41:42 AM | Permalink

Ilya Somin's reaction at volohk.com is consistent with mine:

For now, the key takeaway from today's decision is that university affirmative action programs will get tougher judicial scrutiny than they have over the last ten years. Most likely, there will be additional litigation in the lower courts, as plaintiffs challenge affirmative action preferences under Fisher's tough interpretation of "narrow tailoring."

He also thinks this ruling will have at least marginal and incremental, but still significant, impact on the willingness of lower federal courts to defer to universities' judgment and supposed expertise:

[T]oday’s ruling is still at odds with the dominant understanding of Grutter by most lower court judges, university administrators, and legal scholars. Until today, the conventional wisdom was that Grutter requires courts to give universities substantial deference in determining how much preference is needed to achieve a "critical mass" of minority students diversity purposes. [Today's ruling in Fisher] will thus ratchet up the level of scrutiny applied to affirmative action programs in practice, even if one could argue that nothing has changed in theory.

I agree that is likely to be the overall trend. But procedural rulings like this one still leave lots of wiggle-room for those district and circuit judges, some of whom will ignore the tea leaves from Fisher and continue to act as if nothing has changed.

(3) paul in friendswood made the following comment | Jun 25, 2013 8:57:23 PM | Permalink

Great to see you back in action!

I note that your speculated strategy applies to today's VRA ruling too.

(4) Mike Myers made the following comment | Jun 26, 2013 11:10:19 AM | Permalink

It is good to see you back. Useful analysis indeed.

(5) leon dixon made the following comment | Jun 27, 2013 7:42:29 AM | Permalink

Glad you are back and on target! While I don't like the general arrogance of judges this whole idea that deference is due lickspittles does not jibe with the concept of judicial duty.

(6) Dana made the following comment | Jul 6, 2013 8:13:48 PM | Permalink

The idea that the Chief Justice somehow played "small ball" to keep Justice Kennedy with the majority strikes me as somewhat odd: given that any retirement in the next three years will be a seat filed by President Obama, unless that retirement is of one of the liberals, the kind of play you have described is a weak one, unless Justice Kennedy told Mr Roberts that he would vote against a ruling which outlawed Affirmative Action completely.

Such could have happened, I suppose, but such a position leaves open the door for real trouble: when the 25 year window in Grutter expires, assuming no intervening case, the Court will again be asked to rule on racial preferences, and if it's the wrong Court, they might continue in perpetuity. Unfortunately, I see Fisher as possibly the last chance we would have had to overturn state racial preferences completely. (I don't care if private institutions have Affirmative Action programs.)

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