A word on Justice Kennedy's "surprising" turn to the left

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.  

What Will Kennedy Do in the Texas Affirmative Action Case?

The Supreme Court has agreed to hear an affirmative action case that challenges the affirmative action program administered by the University of Texas.  Many commentators think that this case signals the end of affirmative action.  Afterall, why would the Court take this case if not to overturn its 2003 decision in Grutter v. Bollinger? For those despairing about this case, I want to make the case for some cautious optimism.  I also want to present a more nuanced analysis than the analysis that I'm seeing on some of the blogs and in the media.

First, it takes four Justices on the Court to grant cert, but it will take five Justices to overturn the judgment of the court below, a panel of the 5th Circuit Court of Appeals, which upheld the constitutionality of the Texas affirmative action program.  (By the way, the author of the 5th Circuit opinion is the conservative judge Patrick Higginbotham, who wrote a very strong and careful opinion upholding the Texas plan.) I don't know which Justices voted to take the case, but there are easily four Justices who would vote to strike down the program and maybe even reverse the Court's decision in Grutter.  Chief Justice Roberts, Justices Scalia, Thomas and Alito are all good bets to both strike down the program and find that the constitution does not allow raceconscious decisionmaking by state actors.  So this leaves Justice Kennedy.

Second, Justice Kennedy's views on race is more nuanced than the commentators are giving him credit for.  Unlike his fellow compatriots on the right, especially Justices Scalia and Thomas, and maybe even the Chief, Justice Kennedy does believe that the government can take race into account as long as the government does so in a manner that is consistent with the Constitution.  Even in his dissent in Grutter, Justice Kennedy cited Justice Powell's Bakke opinion approvingly for the "principle that a university admissions program may take account of race as one, nonpredominant factor in a system designed to consider each applicant as an individual." He closed his opinion in Grutter and by "reiterat[ing] [his] approval to giving appropriate consideration to race in this one context." More pointedly, in the Parents Involved case, Justice Kennedy stated explicitly, "Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue."  This means that as a matter of principle, Justice Kennedy agrees with the diversity rationale.  This is why commentators who fail to distinguish between Justice Kennedy and the other conservative Justices are making a mistake.

Third, unlike the other Justices on the right, Justice Kennedy has consistently expressed solicitude for the circumstances in which folks of color find themselves. In Grutter, he cited approvingly, "the Court's important holding allowing racial minorities to have their special circumstances considered in order to improve their educational opportunities."  Justice Kennedy expanded upon this theme in his concurrence in Parents Involved.  In that case, he made the argument that even though we aspire to live in a colorblind world, the reality is that race continues to matter.  Along with Justice O'Connor's opinion in Grutter, Justice Kennedy's concurrence in Parents Involved is the most sophisticated attempt by a conservative Justice to to reconcile conservative ideology with a view of the constitution that takes into account the equality concerns of Americans of color.

Fourth, and this is where the rubber meets the road, Justice Kennedy has a narrow view of the types of governmental programs that can use race consistent with the Constitution. In he disapproved of the University of Michigan Law School's affirmative action program in Grutter because the thought that race played too big of a role in the admissions process.  He thought the Michigan Law School's program was the equivalent of a quota.  He disapproved of the programs in the Parents Involved case because neither Seattle nor Louisville, according to Justice Kennedy, fully explained the manner in which they took race into account  He did not think they used race as one consideration among many other considerations.  He wrote that "Race may be one component of . . . diversity, but other demographic factors, plus special talents and needs, should also be considered."  What he objected to is "Assigning to each student a personal designation according to a crude system of individual racial classification."    He encouraged government actors to use "race-neutral means first  and "if necessary" they can use "a more nuanced, individual evaluation of school needs and students characteristics that might include race as a component."

Fifth, this two-tiered approach, first use race-neutral means and then use a more limited race conscious approach that makes a narrow use of race, is precisely the Texas program.  Texas first employed its Ten Percent Plan, pursuant to which 10% of high school graduates are automatically admitted to the University of Texas.  The University then conducted a study and determined that the Ten Percent Plan did not yield sufficient diversity.  According to the 5th Circuit's opinion, "After more than a year of study . . .,  [the University of Texas] adopted a policy to include race as one of many factors considered in admissions."  That policy authorized the University to take race into account with respect to the pool of applicants that were not admitted to UT under the Ten Percent Plan (it is that policy that the plaintiffs challenge in the case.)  The 5th Circuit also found that UT does not engage in a racial quota, does not keep an ongoing tally of admits by race, does not try to mirror the state's racial demographics, and applicants of every race, including white students, can make the case that their race will contribute to the diversity of the school.

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 idd 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 coms 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.

Here they come again: the justices and affirmative action

Stop me if you have heard this one before: a student applies to an elite university and is denied admission.  Incidentally, admissions officials concede that they consider many different factors when making decisions, one of which is the race of the applicant.  The student who is denied admission then searches through the many applications only to discover that some Black and Latino applicants with lesser grades and/or test scores are granted admission to said university.  Alas, a federal case is born.

Abigail Fisher is only the latest in a long line of white applicants so aggrieved. It just so happens, however, that the U.S. Supreme Court might finally fall for the ruse once and for all.  Or in the words of Adam Liptak, "college diversity nears its last stand." 

This is ridiculous on too many levels. It is not terribly difficult to parse through the applicant pool and find admitted Black and Latino applicants who scored worse yet got in.  But it is also not terribly difficult to find in-state residents who scored worse than out-of-state residents yet got in, or mountain climbers, or sons and daughters of alumni, or applicants who can throw a football or hit a ball with a stick.  Somehow, we need an argument in order to differentiate the use of race from all these other factors.  But the justices -- or for that matter, critics of affirmative action -- have yet to offer one.

Here is what passes for a good argument nowadays, from anthropologist Peter Wood:

“The part of diversity that matters to me and a lot of academics is the intellectual diversity of the classroom. . . .  The pursuit of a genuine variety of opinions that are well thought through and well grounded is essential. But that has an off-and-on, hit-or-miss connection with ethnic and racial diversity.”

Here is another, from Yale law professor Peter H. Schuck: “The idea of racial and ethnic diversity altering the kind of conversation that goes on in the classroom is so overrated.” 

I happily concede either argument.  But note that similar things could be said about the use of any other factor considered by universities today, from the use of legacy or residency to extra points for doing extracurricular work or having elite athletic credentials.  

The point is this: the critics are make policy arguments, not constitutional ones.  So the issue here is whether the Constitution has anything to say about this question. If the Court's opinions are any indication, it appears that the answer is not as easy as one might think.

Here's what I would love to see in these opinions: a detailed analysis of the history of the 14th Amendment and the reasons why the Reconstruction Congress -- Bingham, Trumbull, and friends -- intended to bar the use of race by the state.  I think this is a tough argument to make, but I suppose it is possible.  Surely, I would expect Justice Thomas to at least pretend that such an argument exists.  Instead, all we get are silly and inane platitudes about the harmful effects of using racial factors.  

Hypocrisy is not becoming, much less by our resident philosopher kings.

Also, whatever happened to the norm of stare decisis?  I would expect the conservative justices to be particularly sensitive to this norm, and the notion that the public has a right to expect that the Court will not change its collective mind as the institution changes membership.  After all, remember the debate during the Kagan nomination about what makes a judge an activist.  The answer from the Republican leadership in the Senate, using the example of Justice Marshall, was that an activist judge is a judge that does not abide by established precedent.  They used the example of the death penalty and how Justice Marshall refused to accept these cases as settled law and instead continued to dissent in case after case. 

Could they really turn around this quickly and overturn Grutter, decided in 2003?

I still think that the case is still up for grabs.  The conventional wisdom is that the five conservative justices on the Court are prepared to take on Grutter.  Yet Justice Kennedy might not be quite so willing. His views on this question may be changing.  His recent concurring opinion in Parents Involved, for example, show a side of Justice Kennedy we had not seen before.  He even went as far as push back on the old conservative trope, Justice Harlan's dissent in Plessy. But to say that Justice Kennedy's views are evolving should not surprise anyone. Such is the lot of the super median.

In the end, he might ultimately save the Court from this embarrassment.

Should Liberals Fret about Future Supreme Court Rulings?

In a very provocative article in the New York Times Magazine, Emily Bazelon suggested that "[t]he next few years of Supreme Court rulings could be brutal for liberals."  This is because some weighty issues are coming to a Court where conservatives hold a 5-4 edge.  And the issues are certainly volatile, from the constitutionality of the health care law to same sex marriage, affirmative action and illegal immigration.  Fretting appears to be in order.

There is reason to fret, for example, about the state of the federal judiciary.  As Bazelon writes, Republican Presidents since 1981 nominated and confirmed 41 appellate judges under the age of 45, as contrasted to only 10 for the Democrats.  President Bush contributed 10 appellate judges to this list.  president Obama?  Zero.  This is baffling, especially since Obama is a former law professor who seemingly understood that lower court judges "turn the Supreme Court's vague decrees into actual marching orders for the country."  Instead, the President has shied away from big fights, and in so doing has left the federal bench with more than 80 vacancies.  Incidentally, these vacancies are unparalleled in the history of the federal judiciary.  

There is further reason to fret in Bazelon's plea for strict scrutiny for sex discrimination. She writes that the three women justices might be able to find two more votes -- Breyer's, Kennedy's, or maybe Scalia's -- to change the standard for sex discrimination from intermediate scrutiny to strict scrutiny.  On her account, this is important because the government has an easier time justifying such discrimination under intermediate than under strict scrutiny.  This is right, of course, but it is also why I think she has it exactly backwards.  This is not Bazelon's fault, of course; her argument is on the side of reason. This is due to the conservative justices' ahistorical and disingenuous application of strict scrutiny.

Their story is quite simple.  While facing a state racial set-aside program, Justice O'Connor wrote for the Court that she could not tell whether the program was in fact a benign law designed to help its intended beneficiaries, or a law analogous to Jim Crow statutes  of old.  She had no idea.  And so the only way she was able to draw that distinction was by applying strict scrutiny and asking the government to proffer a compelling interest for enacting any such laws.  Needless to say, whatever interests the government proffered fell short.  And the laws were struck down time and again.

Note what this would do for sex discrimination statutes. As matters stand, the government only needs to identify an important interest for treating men and women differently.   Under this standard, Title IX remains a constitutional exercise of congressional power, as does Title VII's prohibition against sex discrimination.  Were the standard ratcheted up to strict scrutiny, it remains to be seen whether the government could justify either of these two laws.  It seems unlikely.  

This is why if given a choice, I'd happily give back strict scrutiny as applied to racial classifications.  I don't think advocates of gender equality want any part of it.

* * * 

Bazelon makes a third point, and by the title of her essay, this is where I thought she'd spend most of her time.  This is the question of what the Court will do with the big cases it will soon face.  On this point, she hedged: on the one hand, she offered Kennedy's opinion in Brown v. Plata, the California prisoner population case where Kennedy wrote that “[p]risoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.”  This ruling signals that Kennedy might be inclined to rule in favor of the health care law.

On the other hand, Kennedy joined the five-member majority that upheld Arizona's laws that crack down on businesses who hire illegal immigrants.  This is a strong signal that Kennedy will vote to uphold the notorious Arizona immigration law that allows the state to stop people and ask for their papers.  Bazelon also cites work by Professor Lee Epstein that suggests that median voters on the Court "line up almost exactly with the president who chose him."  In Kennedy's case, Bazelon points out, that would be President Reagan. Hardly a comforting thought for liberals, "no matter how many times Obama invokes him in speeches."

  

The question of what Kennedy will do in the future presents one of the most interesting questions in constitutional theory and law.  This is why I think Bazelon gave it short shrift.  Undoubtedly, Kennedy is the Court's median justice, and according to Epstein, a super median justice at that.  He holds the future of the Court in his hands. This is key, as the Court is gearing up to face some of the iconic statutes that form part of the Second Reconstruction.  The next few years could indeed be "brutal" for liberals.

When it comes to questions of race, however, Kennedy has given us enough information to think that he will give these questions the considered attention they deserve.  I am thinking here of his concurrence in Parents Involved and his majority opinions in both Ricci and LULAC v. Perry.  I will say much more about this argument in a future post. For the moment, I can say that I do not think he will take that fateful step.

As for the implications of this view: it is clear that the conservative justices are gearing up to examine the constitutionality of the Voting Rights Act and select portions of the Civil Rights Act. This means that one person, properly situated, can single-handedly bring down the Second Reconstruction. This is a remarkable fact of American political life. Justice Kennedy will choose to uphold or strike down these revered civil rights laws on the basis of his idiosyncratic cultural worldviews and his particular understanding of the politico-constitutional domains in question. How in the world do we justify that?

In the end, I think Alexander Bickel had it almost right. The challenge of constitutional theory lies in justifying placing this power not on an unaccountable court but on a single justice.

School Desegregation in Action (cont.)

In reaction to a Washington Post article on the real-world outcome of the Parents Involved decision, Guy writes that the Court's impact "has been negative at best."  I am not sure what he means by this, especially in light of the very passage that he cites.  For example, and as the article explains, Seattle stopped its efforts to implement a policy of classroom diversity; school assignments were changed in many places, including New York City and Beaumont, Texas; and teacher assignment plans were struck down in Memphis and Cincinnati in cases that cited Parents Involved approvingly.  It is hard to conclude from these facts that the impact of the Court's opinion "has been negative at best."  This is an important question.  I wish he'd tell us exactly what he means.

Whichever way one feels about the impact of Parents Involved, his comment does point to one of the most interesting aspects of the Supreme Court's role in American society.  Why in the world would any political actor acquiesce to a mandate from the Court?  

Kennedy's & Roberts' Jurisprudence in Action: School Desegregation

Robert Barnes of the Washington Post has a a wonderful article on the changes wrought by the United States Supreme Court's 2007 decision, Parents Involved Community School District v. Seattle.  Parents Involved is a 5-4 decision by the Court in which Chief Justice Roberts attempted to severely limit, if not eliminate, the ability of public school's to use race to achieve racial equality. The controlling opinion was written by Justice Kennedy, who found the Roberts opinion too extreme.  Roberts's opinion precluded the public schools from using race to achieve racial equality, but Kennedy's opinion provided a limited way forward. 

Robert Barnes returned to Louisville, Kentucky and one of the school districts at issue before the Supreme Court, to determine how they were responding to the Court's decision.  Here is a short excerpt from the article:

The impact of the decision, which directly involved schools here and in Seattle and set rules for school boards across the nation, already has been noteworthy. Seattle has mostly abandoned efforts to force diverse classrooms; it has returned to a system of neighborhood schools augmented by magnet schools and new educational programs scattered throughout the city.

After the ruling, the Bush administration, which supported the challenges to the plans in Seattle and Louisville, warned other local school officials to be wary of assignment plans that relied on race. School attorneys advised their boards that such plans were sure to be challenged. The message was reinforced when conservative legal groups forced changes in school assignments in places as diverse as New York City and Beaumont, Tex.

The decision was cited when courts struck down teacher-assignment plans based on race in Memphis and Cincinnati.

But Louisville, along with a number of other like-minded systems across the country, is betting that using socioeconomic factors, not just race, will help maintain diverse schools and meet the Supreme Court's requirements.

Those who have battled the school system here say it is nothing more than an end run around the court's decision, a misguided experiment by school officials who should be focused on the bigger goal of improving education.

I highly recommend this piece.  It fits with the literature on the the ability of the Supreme Court to affect change. The conservative majority on the Supreme Court clearly attempted to profoundly change the ability of the government to use race to achieve racial equality.  After reading this article, in my view, the Court's impact has been negative, at best. 

Are We Witnessing the End of Justice Kennedy's Role as "Super Median"?

It is an article of faith that Justice Kennedy is the Supreme Court's swing voter, the one justice who controls the Court's important decisions.  Some go as far as to label him a Super Median, because his position on the Court allows him to "exercise significant control over the outcome and content of the Court’s decisions."  On every decision that matters, his vote controls the outcome.  He is "the court's true compass."

Decisions from this past term confuse this conventional picture.  According to Linda Greenhouse, Kennedy is no longer at the center of the Court.  In order to be a true swing vote, Kennedy's vote must be truly available to liberals and conservatives on the Court alike.  This was true on 2007, she writes, a term when Kennedy was in the majority in all 24 decision decided by a 5-4 vote.  Yet this was no longer true this past term.  Concededly, her data set is quite small; all the same, the picture that emerges is one where Kennedy is now part and parcel of the Court's conservative bloc, rather than the Court's enigmatic rudder.  For example, in the 18 cases decided by a 5-4 vote, Kennedy dissented in 5 of them.   The Chief Justice also dissented in five of these cases, while Alito dissented four times, and Scalia and Thomas dissented in three.  This trend leads Greenhouse to conclude that Kennedy is no longer the Court's "center of gravity."


I have three reactions.