Commentary on Fisher: If you (the Court) choose not to decide, you have still made a choice (at least for now)

Vikram Amar is Associate Dean for Academic Affairs and Professor of Law at UC Davis.

On the one hand, my ego is heartened to know that last fall, in writing for this site, I explicitly observed that the Court might do just what it decided to do today — simply remand to the U.S. Court of Appeals for the Fifth Circuit for a sharper look at the University of Texas’s race-based policy and its justification.  As I wrote:

I see three possibilities. The narrowest option would be to chide the Fifth Circuit for having deferred to the university on the question of whether consideration of each applicant’s race really was necessary to accomplish diversity, and simply remand to the Fifth Circuit for application of a “true” strict scrutiny. This course of action would be defensible, and draws some support from what the Court did in the nineties in Adarand Constructors Inc. v. Pena (in which the Court held that strict scrutiny applies to all race-based affirmative action plans — even those undertaken by the federal government — but declined to apply that scrutiny in the first instance to the highway set-aside program at issue).

But on the other hand, I should point out that I quickly added in that posting that I didn’t expect the Court to do this:  “[T]his first possibility seems to me unlikely given the Court’s more recent tendency to announce, and then apply in the case at hand, rigorous tests in the affirmative action realm, as exemplified by Justice Kennedy’s own majority opinion in Ricci v. DeStefano.”

In hindsight, I’m even more surprised the Court took the route it did in Fisher, at least this late in the Term.  Had the Court wanted all along to issue the short majority opinion Justice Kennedy delivered this morning, it could have done so even as a summary disposition, without the need for briefing or oral argument.  The defect in the Fifth Circuit’s decision — explicit deference to UT not just as to the university’s ends but also as to its race-conscious means — was up front on the face of the Fifth Circuit opinion; indeed, this problematic aspect was obvious to anyone who read the lower court ruling carefully.

That the Court would take so long to issue a ruling such as today’s is thus highly suggestive that there is a complicated, Term-long story of how we ended up getting the seven-to-one disposition in which Justice Kennedy wrote for all participating Justices except Justice Ginsburg.  We may not know precisely what happened, and what any earlier draft dispositive opinions (by Justice Kennedy or someone else) said, for years.

What is clear today, though, is that race-based affirmative action survives.  True, Justice Kennedy forcefully explained that meaningful strict scrutiny must always be applied to a college’s use of race, and he added that a reviewing “court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity” (without discussing whether the word “workable” takes account of the university’s other educational goals — such as assembling a student body with good academic credentials.)   But, crucially, he did not require (or even come close to requiring) that all schools try to use percentage plans (such as UT’s Top Ten Percent plan) or the like before adopting race-based programs.

Moreover, while Justice Kennedy reminded lower courts that they cannot perform a strict scrutiny that is “feeble in fact,” in reality he did not ratchet up the standard — at least in its verbal formulation — from what it purported to be in prior cases.  Strict scrutiny sounds formidable, but its application is sometimes in the eye of the beholder.  That is why Justices ranging from Alito to Sotomayor were all willing to join Kennedy’s opinion; strict scrutiny that is not applied in a case is really strict scrutiny that is not defined in a case.  (Recall that in Grutter v. Bollinger, the majority of the Court upheld the University of Michigan’s race-based policy using a strict scrutiny that Justice Kennedy, in dissent, conceded was stated accurately, but not — to his mind — applied fairly.)

As a result of all this, educational institutions and lower courts remain more or less free to continue to do what they have been doing, provided they are more careful than the Fifth Circuit was to adhere to the formal requirements of Justice Kennedy’s formulation.  It may be that the Supreme Court will grow dissatisfied with the way lower courts understand and apply strict scrutiny in this setting, but my guess is that the Court is unlikely to grant review in another race-based educational affirmation action case for a handful of years, at which time things could be different in a number of respects.

In the end, Justice Kennedy declined — for the foreseeable future at least (and it is interesting that he referred to the University of Michigan law school program upheld in Grutter as being “limited in time”) — to change his stance that the use of race by colleges is simply very hard to justify rather than completely impermissible.  That decision means that the status quo of affirmative action will largely remain intact.  Although today’s result was, technically, against affirmative action in that the Court undid a lower court ruling that had upheld a particular affirmative action plan, the Court’s action did much to ease fears of an imminent demise of affirmative action more generally (in part because it may be a number of years before the Court takes another case in this area of law).  Indeed, except with regard to UT in particular, today’s ruling is not much more disappointing to affirmative action supporters than would have been a denial of cert. altogether.