Justice Breyer, in joining the majority opinion in Fisher, felt like he dodged a bullet. He said “phew,” it could’ve been worse. Justice Ginsburg, perhaps learning her lesson from joining the majority opinion in NAMUDNO, broke off in Fisher. The four year gap between NAMUDNO and Shelby County (in which the all-important 2012 election, subject to VRA, took place) will pale in comparison to the 1 year gap between Fisher and Schuette v. Coalition to Defend Affirmative Action.
In Shelby, the biggest time bombs proved to be the language about “equal sovereignty of the states.” Justice Ginsburg expressed regret at joining that language. Justice Stevens couldn’t even acknowledge that he joined the opinion.
So, it may be fun to parse through the majority opinion in Fisher, and pluck out any possible time bombs that could be cited by a conservative majority next term, that significantly limits the use of affirmative action. The pithy opinion is only 13 pages, but certainly surprises lurk within the pliable language of Justice Kennedy. I think a rough guide for a timebomb is an important-sounding dictum without a clear citation to precedent–in other words, something new that was added.
A few candidates, which focus on the burden of the government to justify the use of affirmative action, and the nature of the court’s rule in applying strict scrutiny (substitute “university” for “government”). Granted Schuette is a somewhat bizarre case (read up on it), but the affirmative action framework will still be relevant.
- A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision.
- Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference.
- True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” Id., at 337.
- Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity.
- This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.
- Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.
- A plaintiff, of course, bears the burden of placing the validity of a university’s adoption of an affirmative action plan in issue. But strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice
Will Justice Breyer still say “Phew” next term? Or will Justice Ginsburg say, “See I told you so!” Will it even matter? Or what about Fisher II on remand?