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 centers on Abigail Fisher, a white woman now 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 says she was discriminated against because of her race and that UT Austin accepted nonwhite students with worse grades and fewer extracurricular activities.
“Privileging one characteristic above all others does not lead to a diverse student body,” Kennedy wrote in his opinion, expressing support of holistic admissions decisions. “Indeed, to compel universities to admit students based on class rank alone is in deep tension with the goal of educational diversity as this Court’s cases have defined it.”
The Supreme Court first heard Fisher’s case in 2013 before ruling to send it down to a lower court to be reevaluated. It’s likely that the Supreme Court’s conservative justices were relying on Kennedy’s skepticism 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 2013 decision was actually a compromise and that the court was ready to rule against the University of Texas. In a New York Times op-ed article 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,” Biskupic wrote. “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.”
Noting that the Supreme Court needs four votes to decide to hear a case, Greenhouse wrote, the conservative justices most likely “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.