June 23, 2016; Washington Post and the New Yorker

In what was likely as much of a surprise to proponents as it was a disappointment to its opposition, the Supreme Court upheld a lower court ruling on affirmative action yesterday. The majority opinion (with Elena Kagan having recused herself) on the 4-to-3 decision was written by Justice Anthony Kennedy—another surprise, because he had never before voted for a race-conscious plan.

The opinion reaffirmed that the value of creating a diverse student body justifies a certain amount of intrusion on the equal protection provision of the Constitution.

“A university is in large part defined by those ‘intangible qualities which are incapable of objective measurement but which make for greatness,’ ” Kennedy wrote. “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

In a dissenting opinion, Justice Samuel Alito charged that Kennedy had flipped in his views. However, as Jeffrey Toobin writes for the New Yorker, “The appropriate answer to this criticism is: So what? The Justices have often quoted a famous observation by Justice Felix Frankfurter: ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’”

The case was based on a legal challenge to the University of Texas’s admissions policy from Abigail Fisher, a white applicant who was denied entry to the University of Texas at Austin. Justin Driver, a law professor at the University of Chicago, said the ruling “signals that affirmative action is safe not only at the University of Texas, but around the country.”

Referring to UT Austin’s unusual admissions plan, which guarantees acceptance to the top students in each Texas high school, Driver said, “If even this program survives scrutiny, it is extraordinarily difficult to believe that the court will be prepared to strike down any university’s affirmative-action program anytime soon.”

As to what exactly happened here, Toobin has this to say:

Kennedy values his place as the swing Justice on the Court, and it’s possible to see in his opinion a recognition of which way the Court is heading. The Justices are divided in much the same way the country is: four Democratic appointees, and four Republican ones. President Obama has nominated Merrick Garland to fill the vacancy left by Antonin Scalia’s death, but the Republicans in the Senate have refused even to hold hearings for him, let alone a vote. This defiance of congressional and constitutional norms is outrageous, and it’s also revealing. Mitch McConnell, the Senate Majority Leader, and his fellow-Republicans see a Presidential election slipping away from their party, and they have made the reasonable calculation that some Democrat—Obama or Hillary Clinton—will fill Scalia’s seat. So the Republicans are postponing a five-to-four Democratic majority on the Supreme Court for as long as they can. But that doesn’t make that majority any less inevitable.

Kennedy must see this, too. The four Democratic appointees have consistently embraced the notion that all institutions are strengthened, not weakened, by diverse membership (as have, for the most part, the American people). That view will surely be in ascendance in any Democrat-dominated Supreme Court. Kennedy could fight that coming wave or try to stay ahead of it. He did the latter, which both honors him and ennobles the country.

—Ruth McCambridge