Supreme Court Justice Anthony Kennedy has emerged as the unlikely hero of affirmative action, supplying the swing vote in the court’s 4-3 decision to uphold the use of race in college admissions decisions.
This is a first for Kennedy, who before this most recent case, Fisher v. University of Texas, had never voted to uphold an affirmative action program.
The dispute centres around Abigail Fisher, a white woman in her mid-20s, who sued the University of Texas at Austin in 2008 after she was denied admission to the state’s flagship public university.
She claims she was discriminated against because of her race, and that UT Austin accepted non-white students with worse grades and fewer extracurricular activities.
The Supreme Court first heard Fisher’s case in 2012, before sending it down to a lower court to be reevaluated. It’s likely the Supreme Court’s conservative justices were relying on Kennedy’s scepticism to strike down affirmative action for good when they voted to rehear Fisher’s case last year.
Legal journalist Joan Biskupic’s 2014 book on Justice Sonia Sotomayor — “Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice” — revealed that the 2012 decision was actually a compromise and the court was ready to rule against the University of Texas. In a New York Times op-ed last year, Supreme Court reporter Linda Greenhouse highlighted Biskupic’s book in terms of what it might mean if justices again took up Fisher v. University of Texas.
“In the University of Texas case, it initially looked like a 5-3 lineup. The five conservatives, including Justice Kennedy, wanted to rule against the Texas policy and limit the ability of other universities to use the kinds of admissions programs [upheld in earlier cases]. The three liberals were ready to dissent,” Biskupic writes.
Noting the Supreme Court needs four votes to decide to hear a case, Greenhouse writes, it’s likely the conservative justices “persuaded themselves that Justice Kennedy will hold firm rather than seek another temperature-lowering compromise — and that the ensuing heat would be an institutional price worth paying.”
It seems they were wrong.
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