On Monday, the Supreme Court issued its ruling in Fisher v. University of Texas ,finding that the the Fifth Circuit did not accurately apply strict scrutiny in the case. Seven justices joined the court in its decision to push the decision back down to the Court of Appeals. Only one justice dissented, Justice Ruth Bader Ginsburg, to argue that the appropriate standard of scrutiny was applied and nothing further was needed. Justice Clarence Thomas wrote a concurring opinion to notify the court and world that when affirmative action is more squarely presented, he will definitely vote against it. And Justice Scalia concurred only to note that the only reason he did not vote to strike down affirmative action this time is because it was not the right case to do so. So, what does all of this legal jargon mean?
First, it means that nothing has changed for affirmative action because of this decision, at least not yet. The court has effectively said, “We are not ready to make this decision yet, so the lower court should take a second swing at it.” The Supreme Court has decided to call a halftime in the fight over affirmative action to give itself some time to decide what it really wants to do on the issue. The Fifth Circuit will think some more about its decision and then issue a ruling at some point in the next year. After which, the decision will be appealed back to the Supreme Court with the exact question: “Is affirmative action constitutional?” So, next October at the very latest, the affirmative action match is back on and the Supreme Court will really get in the ring. Unless it decides to do so earlier, which brings me to my next point.
It is interesting that the Supreme Court ruled this way in this affirmative action case because it has decided to take up a second affirmative action case (Schulette v. Coalition to Defend Affirmative Action). It seems that if the Supreme Court really does not want to decide the fate of affirmative action, it should stop taking cases that ask the court to deal with that question. Nevertheless, there will be another affirmative action decision next spring or summer, but my hunch is that the decision in that case will not be particularly explosive.
Finally, when the Fisher case makes its way back to the Supreme Court, likely in the 2014-2015 term, it is a complete toss-up as to what will happen. Justice Ginsburg was the only liberal judge willing to put her foot down today. Justices Kagan, Sotomayor, and Breyer were silent today, and that has me particularly concerned. There should have been a joint concurrence between the three of them that explained their constitutionally based support for affirmative action. The absence of such a statement means that neither we, nor the lower court, have any insight on where the liberal justices are willing to take affirmative action. If they are unwilling to stand up for it, then affirmative action may be dead in the water when the second round of Fisher hits the court.
For now, affirmative action fights on for another day, but this is only halftime. There’s still a second half of the game left. Don’t leave before you see how it ends.