The Supreme Court Goes Small on Affirmative Action

 

In a 7-1 decision, the Supreme Court vacated and remanded the Fifth Circuit's decision in the Fisher v. University of Texas affirmative action case. Justice Ginsburg was the lone dissent, with Justice Kagan recused. In effect, the decision sent the case back to the lower court, with no major decision here on the fate of affirmative action in the United States. Here's Justice Kennedy writing in the majority opinion:

The District Court and Court of Appeals confined the scrutiny inquiry in too narrow a way by deferringto the University's good faith in its use of racial classifications and affirming the grant of summary judgment on that basis. The Court vacates that judgment, but fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis.

The decision, while obviously not a major one, took the court a uniquely long time to decide. The court heard arguments in the case last October.

While the court as a whole did not have much to say on affirmative action in the decision, Justice Clarence Thomas in his opinion said that he personally would've overturned the use of race in making admissions decisions in higher education:

I write separately to explain that I would overrule Grutter v. Bollinger, 539 U. S. 306 (2003), and hold that a State's use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.

Later, in his opinion, he explained his thoughts on the larger matter of affirmative action in higher education.

Attaining diversity for its own sake is a nonstarter.

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