A few weeks ago, the US Supreme Court upheld the University of Texas' affirmative action plan in Fisher v. Texas. The big story of the case was Justice Kennedy's apparent switch on questions of race. How in the world does a justice who refers to the use of race by the state as a "corrosive category," and who argues that “[p]referment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality," vote to uphold an affirmative action plan?
This was the leading narrative in the wake of Fisher. Justice Kennedy's opinion was "stunning," "surprising," even "shocking." But that's not quite right.
This is what Guy wrote four years ago, prior to the Court's decision in Fisher I:
It is not inconceivable that Justice Kennedy would vote to affirm the Texas plan. I would be surprised if Justice Kennedy reversed course and concluded that racial diversity is not a compelling state interest. I would not be surprised if he decided that the Texas plan however did not pass constitutional muster. This would be consistent with what he did with the Michigan case and the Seattle and Louisville cases. But I also think that the Texas plan comes closest to a narrowly-tailored program that Justice Kennedy described in his prior opinions. Consequently, this plan is tailor made for Justice Kennedy and he might just do the right thing in this case.
More recently, I argued that Justice Kennedy's"racial skepticism remains, to be sure, but it is a skepticism now tempered by a far different view of the world and of the role that race plays within it, both as historical artifact and social reality." This is not difficult to see. Try to grapple with Justice Kennedy's opinion in LULAC v. Perry, the Texas mid-census gerrymandering case, or his concurring opinion in Parents Involved, or his recent opinion in Inclusive Communities, and tell me what you see. Fisher II is an extension of these prior cases. Justice Kennedy is clearly evolving.
One question worth considering: whatever happened to Justice Kennedy? It is hardly coincidental that he began to shift on questions of race around 2006, the moment he became the Court's resident median justice. This is the Term after Justice O'Connor's retirement, when Justice Kennedy rose to the rank of "super median." As a super median, that is, "Justice Kennedy enjoys much freedom to expound on his particular constitutional vision. Super medians can do as they wish because any winning coalition must include their votes in the final tally. This is where idiosyncratic legal theories take hold and unorthodox readings of legal texts receive an honest hearing." But importantly, if not crucially, this independence is tempered by public opinion. This is to say that Justice Kennedy's is not fully independent, but cabined by public opinion trends. In reference to race, I concluded in a recent article that "Justice Kennedy’s apparent metamorphosis on questions of race is a reflection of the conflicted way that public opinion views these questions." These are not easy questions, and justice Kennedy's evolution is simply recognizing that fact.
Far more interesting and important are the implications of this argument. This is how I put it elsewhere:
It is hard enough to justify as a normative matter—though not impossible—granting the Supreme Court the power to overrule the present wishes of elected officials on the basis of vague and imprecise constitutional language. Bickel got this much right. But could anyone defend granting one justice the power to decide some of the most difficult and contested questions of public policy in a country of well over 300 million people? Put differently, how does one defend Justice Kennedy’s role on the Court as super median?Make sense of this: after all the suffering and all the efforts waged on behalf of racial equality in the last half-century, can we justify resting the constitutionality of the Second Reconstruction on Justice Kennedy's shoulders? And make no mistake, that's exactly where the question is at the moment. Can we begin to make sense of that fact?
This is indefensible.