Commentary on Fisher: In with a bang, out with a fizzle

The Court’s decision today in Fisher v. University of Texas at Austin shows the folly of predicting outcomes with any degree of confidence.  It brings to mind a story about when Thurgood Marshall was hospitalized with pneumonia in 1970.  Having campaigned on a promise to radically change the direction of the Warren Court, President Nixon reportedly dispatched an aide to inquire after the Justice’s health.   Marshall instructed his doctor to inform the President, “Not yet.” The story ends with Marshall recovering and, as those familiar with his biography know, going on to live a robust life as a Justice on the Supreme Court.

I remembered Marshall’s quip after comparing the Court’s decision today with the many months of commentary from pundits sounding the death knell on affirmative action in higher education after oral argument in Fisher.  Forecasting the death of race-conscious policies has become a spectator sport.  Notwithstanding the collective angst among many pundits who tried to predict the trendline in the Court’s decisions, however, the opinion fizzles.  It charts no new doctrinal territory but instead reads more like a hornbook on strict scrutiny.

Yet, there is an additional lesson here.  Fisher may suggest that the Court has become concerned about its institutional legitimacy and, therefore, is now wary of issuing sweeping decisions that depart radically from precedent.  At a time when the country appears deeply divided, perhaps the Court has decided that it should simply “call balls and strikes and not [ ] pitch or bat,” as Chief Justice Roberts put it during his confirmation hearings.  (If that is right, it is good news for Shelby v. Holder, the case challenging the heart of the Voting Rights Act, which the NAACP Legal Defense & Educational Fund litigated.  We’ll know soon enough.)

Because the Court’s decision takes the position that the continuing legitimacy of Grutter v. Bollinger was not squarely presented, it does not technically “affirm” the 2003 ruling.  Still, it comes pretty darn close.  Building on a theme of Justice Kennedy’s concurrence in Parents Involved in Community Schools v. Seattle School District No. 1, the opinion roundly endorses the benefits of student diversity, observing that it “serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes.”   Moreover, it should not be lost that Justice Kennedy’s opinion cites Justice Powell’s 1978 opinion in Regents of the University of California v. Bakke at some length, reminding us that overturning Grutter would mean that the Court would also have to turn its back on what is now thirty-five years of constitutional judgment.

Justice Kennedy’s seven-to-one opinion suggests that there is not much serious debate on the Court about whether the educational benefits of student diversity are compelling.   The lone dissenter, Justice Ginsburg, unquestionably supports diversity and would have voted to uphold the University of Texas plan, while Justice Kagan recused herself from the decision based on her earlier work in support of the University of Texas while she was the Solicitor General of the United States.  Moreover, while both Justice Thomas and Justice Scalia called for Grutter to be overruled, no other Justice joined their respective concurring opinions.   The real meat-and-potatoes question, therefore – as indicated by the Court’s decision to remand to the Fifth Circuit for a “redo” on narrow tailoring – is about means, not ends.  Fisher states that courts should “ensure that there is a reasoned, principled explanation” when a university decides to pursue the educational benefits of diversity.  But otherwise the Court is willing to defer to a university’s understanding of its own institutional mission.

At the end of the day, Fisher underscores the benefits of diversity.  This alone is good news.  The country is turning a corner.  Its future rests on its ability to create healthy institutions that embrace and welcome – as the Court acknowledged in Grutter and in Bakke – our “Nation of many peoples.”

Fisher was handed down just one day after the tenth anniversary of Grutter.  With the Court endorsing its core principles, this is a sweet vindication.  The future may be uncertain, but for now we know that diversity is alive and well.

Elise C. Boddie is the former Director of Litigation for the NAACP Legal Defense & Educational Fund, Inc., which filed an amicus brief in support of the University of Texas in Fisher.