TweetIt is a wretched decision, not just on the merits, but because the inexplicable volte-face
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”
We may not know for many years, if ever, what corrupted Kennedy.
Following Thursday’s Supreme Court decision upholding the University of Texas’ race-based admissions program, Hillary Clinton issued the statement that
“The Supreme Court’s decision today in Fisher v. University of Texas is a win for all Americans. It means that universities can continue to make diversity and inclusion central goals of their admissions processes.”
Not really. It is a wretched decision, not just on the merits, but because the inexplicable volte-face threatens the Supreme Court’s fragile balance between liberals and conservatives — split 4-4 since Justice Scalia’s sudden death last February.
Three years ago to the day, in an earlier ruling by the same court in the same case, Justice Anthony Kennedy wrote for a 7-1 majority rejecting racial preferences at the University of Texas, quoting his own court to say that “[d]istinctions between citizens solely because of their ancestry are by their nature odious to a free people.”
For over twenty-eight years on the Supreme Court, Kennedy consistently expressed his opposition to race-consciousness, holding, with Justices Thomas and Alito and Chief Justice Roberts, that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Because the liberal Justice Kagan was recused in this case, conservatives and liberals alike expected a 4-3 ruling against racial preferences.
Instead, they got a shocker: a 4-3 decision upholding race-based admissions, authored by Kennedy himself - the first time he had ever ruled in favor of a racial preference.
As Justice Samuel Alito noted in his infuriated dissent, “Something strange has happened since our prior decision in this case.”
More specifically, something happened between the December 9 oral argument and the June 23rd ruling. Because during the oral argument last December, Kennedy repeatedly expressed frustration that “we’re just arguing the same case. … It’s as if nothing has happened.”
What happened was that Scalia, backbone of the cause, died on February 13th. Since then, Kennedy changed his vote, or his mind.
In 7,000 byzantine words, Kennedy offers no clarity as to what it means to have a “critical mass” of minority students to prevent “feelings of loneliness and isolation,” nor of whom he was thinking when he wrote of “the constitutional promise of equal treatment and dignity,” nor what he meant when he wrote, “[f]ormalistic racial classifications may sometimes fail to capture diversity in all its dimensions.”
Kennedy’s opinion is clear on only one thing, that socioeconomic disadvantage cannot be used instead of race preferences, since “the Equal Protection Clause does not force universities to choose between a diverse student body and a reputation for academic excellence.”
In other words, race gets a preference, not poverty. Universities are left to use race to determine, as Walter Benn Michaels put it, “what skin color the rich kids should have.” As Alito noted, this “turns affirmative action on its head. Affirmative-action programs were created to help disadvantaged students.”
“This is affirmative action gone berserk,” said Alito from the bench.
What are we to make of this turgid mess of an opinion? For fifty some-odd years we have endured a Supreme Court twisting in the wind, its authoritative rulings divided between justices who say racial preferences are mandatory under the Constitution and justices who say they are forbidden. And now comes this opinion, which purports to say both.
If you’re looking for an answer to the Equal Protection Clause, you won’t find it here. But maybe that’s not the right question.
The practical result of this unworkable sinkhole of an opinion is to perpetuate the use of racial preference and the litigious climate created by its muddled rules. Kennedy must have known this, so why did he turn about-face to plant this rotten seed?
Perhaps he got cold feet: with Scalia gone, Kennedy realized it was now up to him to end the race preferences he had so often denounced, and the responsibility was too much for him to take.
More likely, it was a power grab. Kennedy saw that without Scalia to ballast the right, he had suddenly acquired outsized importance — but only temporarily, and he needed to make the most of it. Kennedy wanted to be relevant, to be reckoned with, to be a hero; even at the expense of subverting the Equal Protection Clause, and his own words.
We may not know for many years, if ever, what corrupted Kennedy. But we know it happened; it's happening right now. Even as this article was being written, Kennedy voted to kill the entire Texas statute on abortion - even though it was written to meet Kennedy's own rules.
Kennedy has turned. Unless the next Supreme Court appointees are strong opponents of racial preferences — that is, unless Trump wins the presidential election — the Supreme Court will continue to spawn confusion and grievances while perpetuating the hated diversity agenda.