At the Volokh Conspiracy, George Mason University law professor David Bernstein highlights what may prove to be the most revealing exchange from this week's oral argument over the use of affirmative action in undergraduate admissions by the University of Texas at Austin. In a key exchange between UT lawyer Gregory Garre and the Court, Justice Anthony Kennedy made the following statements:
JUSTICE KENNEDY: So what you're saying is that what counts is race above all.
MR. GARRE: No, Your Honor, what counts is different experiences.
JUSTICE KENNEDY: Well, that's the necessary — that's the necessary response to Justice Alito's question.
MR. GARRE: Well, Your Honor, what we want is different experiences that are going to — that are going to come on campus
JUSTICE KENNEDY: You want underprivileged of a certain race and privileged of a certain race. So that's race.
As I've noted before, Kennedy is a long and consistent critic of the use of racial classifications by the government. Although he has said that "there is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity," Kennedy nonetheless dissented in the 2003 case of Grutter v. Bollinger where the majority found the use of race in admissions by the University of Michigan Law School to be sufficiently modest. So there was already reason to think that Kennedy would vote against UT coming in to this week's case. But if it is indeed true that Kennedy finds the policy now under review to be about "race above all," the University of Texas is in serious trouble.