In an opinion issued this morning, Justice Kennedy joined the Supreme Court’s four liberals to uphold the University of Texas’s “affirmative action” program in the Fisher case. This is the case’s second trip to the Court. It won’t be coming back. The Court’s opinion today is posted here. The Court’s 2013 opinion in Fisher I (as the Court refers to it) is posted here. I think today’s result is disappointing, if not farcical, but unsurprising. I’m taking the liberty of reiterating my own observations on the subject below.
The principle of equal treatment without regard to race is one that is close to my heart. Accordingly, one of my favorite books on a legal subject is Andrew Kull’s The Color-Blind Constitution. (I learned of the book at the time of its publication through Judge Alex Kosinski’s 1993 New Republic review/essay.) It is a book that is by turns inspiring and maddening. I recommend it without reservation to readers interested in the subject.
The book is full of surprises. For example, Kull devotes two chapters to the separate but equal doctrine approved by the Supreme Court in the 1896 case of Plessy v. Ferguson. The case represents the bygone era of Jim Crow, yet at the outset of his discussion of the case Professor Kull makes this astounding observation: “The majority opinion in Plessy makes a comfortable target, and it is routinely vilified. But in its broad holding, as opposed to its particular application, Plessy has never been overruled, even by implication. On the contrary, it announced what has remained ever since the stated view of a majority of the Supreme Court as to the constitutionality of laws that classify by race.”
The principle of equal treatment was adopted as the law of the land in the great civil rights legislation of 1964 and 1965, or so we foolishly thought at the time. It may even have been the law for a minute or two. Then the federal government began building the whole edifice of affirmative action and racial preferences that we live with today and that has been addressed by the Supreme Court in a number of important cases. Certainly insofar as higher education is concerned, the affirmative action regime and the treatment of students based on the color of their skin are entrenched more deeply than ever under the shibboleth of “diversity.”
One of the lessons of Kull’s great book is that the Court wants to retain for the judiciary the discretion and authority to approve varieties of racial discrimination. The ideal of the color-blind Constitution remains permanently on the horizon. To paraphrase George Wallace, affirmative action today, affirmative action tomorrow, affirmative action forever.