"One way or the other, Justice Kennedy will decide the fate of affirmative action."
At The Huffington Post, Stephen Menedian highlights the case of Fisher v. University of Texas, which the Supreme Court recently agreed to hear. At issue is the constitutionality of the university's race-conscious admissions policies. As Menedian explains, when the Supreme Court last heard a case dealing with affirmative action in higher education, 2003's Grutter v. Bollinger, perennial swing-vote Justice Anthony Kennedy dissented from the majority opinion which had upheld the University of Michigan Law School's contested admissions policy. Menedian argues that given the Court's current make-up, this dissent by Kennedy "is a roadmap to the outcome in Fisher." He writes:
In his dissenting opinion, Justice Kennedy agreed with Justice O'Connor that the proper rule for evaluating affirmative action derives from Justice Powell's opinion in the 1970s Bakke decision, an opinion had not enjoyed clear support of a majority of the Court until Grutter. In his opinion in Bakke, Justice Powell asserted that promoting diversity is a compelling government interest that would justify the use of race-conscious admissions. However, such a program must be narrowly tailored to safeguard the rights of innocent non-minority students. Therefore, it follows that Justice Kennedy, like Justice O'Connor, believes that promoting racial diversity is a compelling governmental interest, and would uphold any affirmative action program that is narrowly tailored. However, unlike Justice O'Connor, who voted to uphold the University of Michigan Law School's holistic admissions plan, Justice Kennedy did not believe that University of Michigan's diversity plan was narrowly tailored. In particular, Justice Kennedy cited the fact that the narrow fluctuation band of minority enrollment over the years "subverted individual determination." In addition, Justice Kennedy was concerned that the undue attention to the 'daily reports', which updated university admissions administrators on the number of minority applications accepted, undermined the individualized review throughout the entire admissions process.
Read the rest of Menedian's article here.
It's also worth noting that Kennedy has long been skeptical of race-based government classifications, and believes that such classifications always deserve strict scrutiny from the courts. Consider his dissent in the 1990 case of Metro Broadcasting v. F.C.C., which dealt with the government's preferential licensing treatment for minority-owned stations. "Once the Government takes the step, which itself should be forbidden, of enacting into law the stereotypical assumption that the race of owners is linked to broadcast content," Kennedy wrote, "it follows a path that becomes ever more torturous."
For more on the law and politics of affirmative action, check out Reason's previous coverage here.