Eric Posner's Slate SCOTUS Review: Reaction to Fisher (#UChiLawSCt)
This is quite a news day. I can hardly imagine the spike in traffic on Slate as readers work their way through the latest developments. As others are charged with parsing the season finale of Mad Men, let me provide some brief reactions to Fisher v. University of Texas at Austin, the decision on affirmative action handed down by the Supreme Court earlier today.
As Emily mentions, the case is notable for ducking all the interesting questions. Commentators expected the court either to reject or endorse affirmative action by state universities, but instead the majority opinion, written by Anthony Kennedy, merely scolded the lower court for failing to follow an earlier Supreme Court decision, which applied “strict scrutiny” to all programs with explicit racial classifications. That means that affirmative action using an explicit racial classification is permissible as long as the government can show that it advances a compelling government interest. Kennedy sent the case back to the lower court, where the University of Texas must now show that its affirmative action program—which gives some real but ambiguous weight to the race of the applicant—advances the university’s legitimate educational goals.
The real action can be found in a concurring opinion by Justice Clarence Thomas and a dissent by Justice Ruth Bader Ginsburg. Thomas rather powerfully shows how the court has boxed itself in. The court says that an overt racial classification in a law must be “narrowly tailored” to advance a compelling government interest. The strict-scrutiny standard is very high (“strict in theory, but fatal in fact,” as many wags have put it). In a case from the 1950s, Thomas points out, the court found that racial segregation could not be justified even if it could be shown that if segregated schools were banned, white communities would strip funding from public schools and send their children to private schools, thus hurting black children more than a segregated system would. If the survival of an educational system cannot be a “compelling interest” that justifies racial classifications, then its mere putative improvement through diversification of the student body cannot be, either.