Biskupic Scoop on Sotomayor in Fisher v. Texas, and Connection to Schuette

October 7th, 2014

In an interview this summer, Justice Ginsburg said that Justice Sotomayor wrote her biting dissent in Schuette because she was “distressed” about press “reports” on her failure to dissent in Fisher.

GINSBURG: She cared deeply about the issue. She might have been distressed about some of the reports in the Fisher [ v. University of Texas] case where she went along with the court. So if anybody had doubts about her views on affirmative action she wanted to quell them, which she certainly did.

I found this admission shocking, as there really was no press attention on Sotomayor’s failure to dissent in Fisher–other than a few scattered blog posts.

But now, we have more pieces to the puzzle. In Joan Biskupic’s wonderful new book on Justice Sotomayor (which I received an advanced copy of), we gain an insight into the dynamics of Fisher, and what it meant for Schuette. Justice Sotomayor’s never-published-dissent forced the Justices to back off of striking down the law.

Biskupic describes an “unusually long nine-month set of negotiations” for the case, which explains the inordinate delay for Fisher, which was argued at the beginning of October.

In the University of Texas case, it initially looked like a 5– 3 lineup. 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 Grutter v. Bollinger. The three liberals were ready to dissent. Yet that division would not hold. The case would go down to the wire, unresolved until the final week of the Court term in late June. The deliberations among the eight (Justice Kagan did not participate in any of the negotiations) took place over a series of draft opinions, transmitted from computer to computer but also delivered in hard copies by messengers from chamber to chamber as was the long-standing practice.

Nina Totenberg summarizes the scoop:

But, as Biskupic’s book tells us, with a significant scoop, Sotomayor’s passion can be effective too, as it was two years ago when the issue was affirmative action in higher education — the very system that initially boosted her from the tenements of the Bronx to the elite Ivy League, and eventually, to the top of the legal profession. The case, which involved the University of Texas affirmative action program, was argued in early October of 2012 but was not decided until late June of 2013. Biskupic reports that it was Sotomayor’s scorching dissent, that turned the tide.

“She was furious about where the majority of her colleagues were and what they were going to do in terms of rolling back affirmative action. So she writes this dissent, circulated privately, and it gets the attention of her colleagues” who were “skittish” about the case to begin with. Behind the scenes, inside the court, writes Biskupic, tense negotiations ensued for nine months, with individual justices assuming critical roles. “Among them, Sotomayor as agitator, Stephen Breyer as broker, and Kennedy as compromiser.” In the end, the conservatives backed away; the University of Texas affirmative action policy was allowed to stand, at least for the near future; “and there is no public sign of what Sotomayor had wrought.”

Indeed, Sotomayor signed on to the court’s 7-to-1 opinion, without a public peep. Evidence that she can be a team player, and a discreet one.

To her credit, Biskupic admits she has not seen any of the draft opinions. She bases her account on “conversations with a majority of justices.”  She also acknowledges that Justice Sotomayor was quite “upset” at her reporting this. In a footnote, she stresses:

Individual justices from both sides of the ideological divide revealed elements of the discussion and the evolution of draft opinions on the condition that information not be attributed to them. Not all of the justices would speak about the case, and Sotomayor herself declined to disclose private negotiations. Internal court documents are kept secret, so a full understanding of the give-and-take remained elusive. It was plain, however, that the case that was argued in October 2012 and seemed headed in one direction took a major turn because of Sotomayor. When asked by the author to describe the attitude Sotomayor had expressed in her draft opinion on the University of Texas program, justices intimated that it would be revealed in the then-pending Michigan affirmative action case. On April 22, 2014, when Schuette v. Coalition to Defend Affirmative Action was handed down, Sotomayor’s strong feelings indeed were on display.

So we don’t know for sure what happens. But now RBG’s comments make more sense. Sotomayor didn’t want to go along with the Court, but she forced them to back down with her dissent. Very likely, the Fisher dissent that was never published became the Schuette dissent–really the “race matters” analysis didn’t fit into Schuette nearly as well as it did to Fisher.

Interestingly enough, Biskupic reports that the other Justices worried about a decision striking down affirmative action would play to the media!

As Sotomayor drafted and began sending her opinion to colleagues’ chambers, they witnessed this intensity . To some, it seemed a dissenting opinion that only Sotomayor, with her Puerto Rican Bronx background, could write. They saw it as the rare instance when she was giving voice to her Latina identity in a legal opinion at the Court. Others compared the dissent to the attention-getting fiery statements that were the trademark of Justice Scalia. And get attention it did. Certainly the justices were accustomed to individual differences in cases revolving around race and ethnicity, but in this dispute some were anxious about how Sotomayor’s personal defense of affirmative action and indictment of the majority would ultimately play to the public.

We know how this turned out in Schuette–the President and the Attorney General agreed with Sotomayor, and she was the toast of the town. While RBG’s interviews made Sotomayor look petty, if this is true, the other Justices who changed their opinion look even more shameful. This dynamic helps make the denial of cert in the same-sex marriage cases make more sense.

Ultimately, enabled by Breyer, Justice Kennedy dialed down the rhetoric to get a five vote bloc–recall that Justice Thomas would have reversed Grutter altogether.

Justice Kennedy, to whom the chief justice had assigned the majority opinion, did not close the door to working toward some sort of compromise that would draw as many justices as possible to an opinion. The conservatives themselves were split on how far they would go, and with Thomas advocating complete reversal of Grutter based on his view that no classifications tied to race were allowed under the Constitution’s guarantee of equality , Kennedy lacked the critical five votes for a single rationale. Kennedy also wanted to lower the temperature of the negotiations, intensified by Sotomayor’s dissenting rhetoric.

By April, the case was still at an impasse.

As the two ideological camps inched toward each other over the weeks, consensus eluded them. They were soon into April, and nearly all the cases from the October– December oral arguments had been resolved.

Ultimately, Sotomayor became satisfied with Kennedy’s “scrutiny” remand:

But Sotomayor, who had come on so strongly at the start, became satisfied with Kennedy’s retreat in his succession of draft opinions.

What a remarkable insight! Read the rest of Joan’s book. It is fantastic, well researched, and you will learn a lot of inside bits you did not know.