The Supreme Court upholds the affirmative action program at the University of Texas.

SCOTUSblog reports.

MORE: This is a 4-3 decision, not a mere affirmance by an evenly divided Court. The odd number of Justices is due to Kagan's recusal. (She worked on the case when she was Solicitor General.)

According to SCOTUSblog, the opinion, written by Justice Kennedy, is "decidedly a compromise," because it requires UT to "continue to reassess its need for any kind of race-conscious affirmative action" and finds it "justified only by a robust record showing that other means of addressing diversity concerns have failed." SCOTUSblog detects "a pretty meaningful shift away here from the trajectory of Fisher I," which "faulted the lower court for giving too much deference to the judgments of the university." Kennedy wrote:

"Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission."

AND: As the Court put it:

"The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies."

ALSO: Alito has a 50-page dissent that includes the line: "Something strange has happened since our prior deci­sion in this case." I don't think that's supposed to be a reference to the death of Antonin Scalia. In any event, if Scalia had lived — assuming he wouldn't have swayed Kennedy from his deference-to-educators approach — the decision would have been 4-4, affirming the Court below and leaving UT to its own devices.

PLUS: Those of you who are disappointed by this decision should consider that it advantages your side of the political argument. A decision going the other way would have made the issue of Supreme Court appointments much more conspicuous and given Hillary Clinton a great boost.

AND: This is the case where Justice Scalia — at oral argument, 3 months before his death — expressed objection to affirmative action in a notably clumsy way, saying maybe those who would, without affirmative action, be better off, because they'd be at "slower-track schools."

"Contrary to Chief Justice Roberts’s implication, science is not some unchanging world of pure objectivity and fact."

"Nor does the pursuit of scientific knowledge exist completely apart from the social dynamics, attitudes and cultures of those who seek answers. Science is inextricably linked with our shared humanity and distinct experiences.... Instead of stating 'force equals mass times acceleration' and moving on, a good instructor will ply her students with real-life examples of how the application of force to a mass produces acceleration. Students must create relatable examples that allow them to practice and perfect their use of these tools before expanding them out into the larger, untested world."

In the NYT, Jedidah C. Isler (an astronomy and astrophysics postdoctoral fellow) attempts to answer the Chief Justice's questions "What unique perspective does a minority student bring to a physics class?" and "I’m just wondering what the benefits of diversity are in that situation?"

The questions came up in the oral argument in the Fisher case against the University of Texas which uses race as a factor in admissions decisions. Existing case law allows intentional race discrimination when it is necessary to serve a compelling government interest, and the compelling interest has been understood in terms of the educational benefit, such as making "classroom discussion...  livelier, more spirited, and simply more enlightening and interesting." What kind of discussion in a physics class would be improved because of the racial diversity of the students?

That's a challenging question, and Isler accepted the challenge. What is Isler talking about when she cites "real-life examples" and  "relatable examples" illustrating principles of physics and having some greater dimension because of the racial diversity in the classroom? Too bad she didn't give a real-life, relatable example of the kind of real-life, relatable examples she was talking about. Is Isler thinking of teachers who "ply" their students with story problems involving "the application of force to a mass produces acceleration" that takes place in an urban environment? In my head, that plays out like a "South Park" scene. Some white teacher is motivated by the presence of black students to infuse physics with details she imagines "relate" to their "real lives"? It would be absurdly patronizing and stereotyping!

"Among the many sad signs of our time are the current political and media attacks on Supreme Court Justice Antonin Scalia..."

"... for speaking the plain truth on a subject where lies have been the norm for years," writes Thomas Sowell of the much-discussed oral argument in Fisher v. University of Texas.

Affirmative action is supposed to be a benefit to black and other minority students admitted with lower academic qualifications than some white students who are rejected. But Justice Scalia questioned whether being admitted to an institution geared to students with higher-powered academic records was a real benefit.

Actually, affirmative action is supposed to be a benefit to the entire student body. That's the compelling interest that the Court has relied on to justify race discrimination. But it should be a benefit to the students who are admitted under the program, and if it is not, then they are being used for the (purported) benefit of the whole group of students.

The key precedent, Grutter v. Bollinger, put diversity in terms of the educational benefits it gives to all of the students. It "promotes 'cross-racial understanding,' helps to break down racial stereotypes, and 'enables [students] to better understand persons of different races.'" It makes "classroom discussion...  livelier, more spirited, and simply more enlightening and interesting."

In permitting this educational benefit to be provided to all students — mostly white students, of course — should the Court take into account that the minority students who are employed as a means to this end may themselves experience difficult burdens? Why should the Court deprive them of the choice of what burdens they wish to shoulder as they evaluate offers of admission? The minority applicants don't have to say yes. If they'd really be better off at a less challenging school, can't they figure that out for themselves? Why patronize them? Do they need rescuing? I think it's enough that there is discussion and information about the downside of going to a school where you have to compete with other students who got better test scores.

Conservatives should lean toward individual autonomy.

"But Scalia’s arguments became quite clumsy, and raised some eyebrows, when he suggested that maybe the University of Texas needs fewer minority students..."

"... and he suggested that many of them find that the classes are 'too fast' for them at such high-rank institutions, and thus prefer to go to lower-ranked, 'slower-track schools.'"

From Lyle Denniston's description of the oral argument in Fisher v. University of Texas at Austin yesterday.

Garre, the university’s lawyer, responded by reminding Scalia that the Supreme Court had rejected that very type of argument a dozen years ago in the last major ruling to uphold a college affirmative action plan, for the University of Michigan Law School.  “Frankly,” Garre said, “I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools. . . .  Now is not the time and this is not the case to roll back student body diversity in America.”

... [Garre's] comment seemed directed at Justice Kennedy, in the hope that Kennedy would not be comfortable casting the decisive vote that ended affirmative action on American campuses. If those were his thoughts, the hearing provided some foundation for them.

Those who are focused on Justice Kennedy should remember that he dissented in the University of Michigan Law School case? There, he wrote:

If universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review. The unhappy consequence will be to perpetuate the hostilities that proper consideration of race is designed to avoid. The perpetuation, of course, would be the worst of all outcomes. Other programs do exist which will be more effective in bringing about the harmony and mutual respect among all citizens that our constitutional tradition has always sought. They, and not the program under review here, should be the model, even if the Court defaults by not demanding it.

Kennedy's questions yesterday were focused on the procedural status of the case, which looked to him like "the same case" the Court had sent back in 2013 when it sent the parties back to the lower court with instructions to look more deeply into something that I assume was highly significant to Justice Kennedy. The case did not go back to the district court for the development of evidence but only to the Court of Appeals which purported to look more deeply into the legal question. Yesterday, there was much discussion of sending the case back down again, but Kennedy was left saying the university “would not put in more evidence than we have now.”

ADDED: By pointing at the mismatch argument crudely, Scalia gave supporters of affirmative action a lavish gift.

The Supreme Court gets back to the affirmative action question it sent back to the 5th Circuit.

Cert. granted in Fisher v. University of Texas.

The Fisher case had been relisted *five* times before the grant today. I think that, given the five relists, many people are probably a bit surprised by the grant. But this just goes to show you that you never know what's going on behind the scenes. 

ADDED: From the link, which goes to SCOTUSblog:

Fisher grant is yet another good example of why it makes little sense to think of the Court as "moving left" even though it IS accurate to say that the liberal wing of the Court has prevailed more often this year than in previous years. The question presented is whether a compromise position well right of the Harvard Plan approved in Bakke will be struck down.

On not taking a second look at that UT affirmative action case.

Linda Greenhouse writes about the potential for the Supreme Court to look once again at Fisher v. University of Texas — the affirmative action case that it sent back to the Court of Appeals in 2013. Greenhouse has written before to express her view that the Supreme Court will not (should not?) take the case again. Last July, after the 5th Circuit opinion came out, she wrote: "unless the new appeal offers a plausible vehicle for getting rid of affirmative action... why would the justices bother?"

But on this blog, we were talking about Richard D. Kahlenberg's contention that the 5th Circuit opinion "is likely to invite review—and reversal—of the lower court’s decision."  Kahlenberg said:

Justice Kennedy’s opinion in the 2013 Fisher decision made two big substantive points and one stylistic one, all of which the Fifth Circuit’s majority opinion, written by Judge Patrick E. Higginbotham, oddly defies.

I summed up what Kahlenberg said were the 3 things Kennedy said that Higginbotham defied:

... Higginbotham "dismissed Kennedy’s emphasis on race-neutral alternatives," "blithely asserted"  that alternatives like socioeconomic affirmative action "wouldn’t work," "paid lip service to Kennedy’s requirement that courts give 'no deference' on the question of whether alternatives can produce 'sufficient' racial diversity," failed to require the University to give definition to its goal of "critical mass," and "took an unnecessary dig at Kennedy’s contention that the Fifth Circuit had misapplied the Grutter precedent."

Okay, now back to Greenhouse's new essay on the subject of why the Supreme Court should leave Fisher II alone. Greenhouse says that the 2013 Fisher decision seems to have been "the result of some kind of compromise":

But what actually happened inside the court remained unknown outside until the publication this past fall of a new book about Justice Sonia Sotomayor by Joan Biskupic, a longtime legal journalist in Washington, D.C. The book, “Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice,” discloses that the original vote was 5 to 3 to disallow the Texas plan.

Wow! I don't remember reading that before.

Chief Justice John G. Roberts Jr. assigned the majority opinion to Justice Kennedy. The dissenters were Justices Ginsburg, Sotomayor and Stephen G. Breyer. As the senior justice in dissent, Justice Ginsburg gave Justice Sotomayor the task of writing a dissenting opinion that would speak for the three.

Notice the name Linda Greenhouse omits: Elena Kagan. Kagan — according to Biskupic — voted along with Roberts, Scalia, Kennedy, Thomas, and Alito to find an equal protection violation in the UT affirmative action policy. I guess I'd better get Biskupic's book (which I must have bypassed because I don't need any more detail on Sotomayor's rise to power). [CORRECTION: No. Kagan recused herself. I should have remembered... or at least noticed that 5 + 3 ≠ 9. Now, once again, I'm free not to get Biskupic's book. ]

But let's stick with Greenhouse:

According to [Biskupic]’s account, Justice Sotomayor circulated a proposed dissent that was passionate and — my extrapolation — polarizing. With “Sotomayor as agitator, Breyer as broker, and Kennedy as compromiser,” Ms. Biskupic writes, there ensued a weeks- and eventually months-long effort to “lower the temperature” and produce an opinion that justices in the competing camps could sign. It succeeded, as Justice Kennedy gradually inched toward the minimalist opinion that Justice Sotomayor was willing to accept. (Justices Antonin Scalia and Clarence Thomas signed the Kennedy opinion as well, but also wrote separate opinions to make clear that they would relish the opportunity to overturn the court’s affirmative action precedents.)

Greenhouse guesses that the polarizing Sotomayor opinion was a lot like what we saw from Sotomayor last year in her long fervent dissenting opinion in Schuette v. BAMN (the case about Michigan's new state constitutional provision banning affirmative action).

Obviously stung and undoubtedly annoyed, Chief Justice Roberts responded in his own opinion that it “does more harm than good to question the openness and candor of those on either side of the debate.”

Against that background, does the court really want to invite a replay of Fisher v. University of Texas? 

Why should Sotomayor's willingness to let loose with some passionate, high-handed rhetoric affect which cases the Court chooses — especially after that Fisher I compromise — if that's what it was — ultimately failed to stop her from saying all those things anyway? We already heard it all in Schuette, so that seems to clear the way for the Court to finish resolving the University of Texas controversy. The 5th Circuit doesn't seem to have responded to the nudge the Court gave it in Fisher I, so now it's the Supreme Court's turn again. Why not?

As the Fifth Circuit opinion makes clear, the case presents a Texas-specific issue. The 10 percent plan is required by Texas law, and no other state has anything like it. 

It was just as Texas-specific the first time up, but there is a larger issue, and it was perfectly apparent back in Fisher I: How seriously must courts take the strict scrutiny requirement that considering race must be necessary to the achievement of classroom diversity?

"Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin."

Abigail Noel Fisher after getting sent back to the Fifth Circuit Court of Appeals attempts a return to the U.S. Supreme Court.

Word watch: pallid.

All of the following occurrences appeared within the last few days:

"The stakes are too high, the disappointment in some quarters — and some Supreme Court chambers — over the pallid outcome of the Supreme Court’s Fisher case too deep, the issue too mobilizing for it to fade away." Linda Greenhouse writing about affirmative action in the NYT.

"The potato farmers of Idaho are, I’m reasonably certain, distressingly pallid in appearance but no one is going around insisting that the French fry industry is going to collapse unless diversity increases there." From a discussion of the lack of racial diversity in Silicon Valley enterprises. 

"Jamie Dornan (the guy who's playing Christian Grey because they couldn't get Beyoncé) tries to give the pallid prose some weight by pausing significantly before informing us that his tastes are … singular, or telling Anastasia Steele that he'd like … to know more about her." A discussion of the "50 Shades of Grey" trailer in The Atlantic.

"And in the leading roles of Will Shakespeare and his muse and lover, Viola De Lesseps, Tom Bateman and Lucy Briggs-Owen are so vibrantly engaging that they make Joseph Fiennes and Gwyneth Paltrow in the movie look like a pair of pallid milksops." From a Chicago Tribune review of a stage version of "Shakespeare in Love."

"Pallid dudes surrounded by dorm-room décor rhapsodize over their first console and the discovery of game-playing soul mates." A NYT article about a movie about the history of video games. 

"The whole your eyes have known, your pallid cheeks have shown; for oh! the swelling tide no bravest heart could hide, when your dear mother died." Catholic News reports on a riddle poem published pseudonymously by Pope Leo XIII in the 19th century. 

"How I hate the man who talks about the 'brute creation', with an ugly emphasis on brute. Only Christians are capable of it. As for me, I am proud of my close kinship with other animals. I take a jealous pride in my Simian ancestry, I like to think that I was once a magnificent hairy fellow living in the trees and that my frame has come down through geological times via sea jelly and worms and Amphioxus, Fish, Dinosaurs and Apes. Who would exchange these for the pallid couple in the Garden of Eden?" The U.K. Independent published that item from the 1910 diary of the naturalist WNP Barbellion.

"'The long days do wear on you,' says a pallid man named Stephen McMurray who is researching the population dynamics of sponges. He dips a spoon into a cup of instant noodles and looks through a window to the sea floor below." Undersea science at GulfNews.com.

Linda Greenhouse predicts that the Supreme Court won't take the University of Texas Fisher case back...

... now that the 5th Circuit, on remand, has approved of the affirmative action program, because "unless the new appeal offers a plausible vehicle for getting rid of affirmative action... why would the justices bother?"

Justice Kennedy, whose vote would most likely decide the appeal’s fate, is already being pressed from the right to man up...

Note that I’m predicting only that the court will sidestep Fisher redux, not that the justices won’t deal again with affirmative action.... The stakes are too high, the disappointment in some quarters — and some Supreme Court chambers — over the pallid outcome of the Supreme Court’s Fisher case too deep, the issue too mobilizing for it to fade away.

ADDED: What do you think of Greenhouse's use of the phrase "man up"? Does it serve her cause of preserving affirmative action or does it undercut what she is saying by presenting support for affirmative action as unmanly? I suspect Greenhouse would say that she's attacking the righties who are pressuring Kennedy: They are the bullies who are taunting Kennedy by questioning his manliness.

Here's the post from a couple weeks ago where I discussed the phrase "man up."

AND: I wanted to add some discussion of whether the righties really did indulge in any insinuations about Kennedy's masculinity, but Greenhouse only cites a Wall Street Journal editorial and it's behind a pay wall. What the hell is the point of writing editorials — attempts to influence opinion — and making them hard to see? I mean, I know how to Google and get to the text, but it's so irritating.

Anyway, the WSJ said "Justice Kennedy blinked" in Fisher. Is blinking unmasculine?

The 5th Circuit's pro-affirmative action decision in Fisher "may, paradoxically, tee up a major loss in the larger war."

Richard D. Kahlenberg's explanation is — despite that mixed metaphor — skillfully done:

As a matter of process, the Fifth Circuit’s decision plays into the hands of conservatives by expediting the possibility of Supreme Court review in two respects. First, the appeals court rejected UT-Austin’s request that it send the case back to the district court for a potentially lengthy hearing on factual issues...

Second, by handing a defeat to Fisher, the court empowered her to appeal the case to the full Fifth Circuit and then to the Supreme Court. If Fisher had won this round, the university would have been in the driver’s seat in deciding whether to appeal. It is possible that the university would have forgone an appeal in order to avoid a potentially negative Supreme Court decision....

Moreover, on the substance, the reasoning of the Fifth Circuit is likely to invite review—and reversal—of the lower court’s decision. Justice Kennedy’s opinion in the 2013 Fisher decision made two big substantive points and one stylistic one, all of which the Fifth Circuit’s majority opinion, written by Judge Patrick E. Higginbotham, oddly defies.

For the 3 things Kennedy said and the way Higginbotham defied all 3, go to the link. Basically, Higginbotham "dismissed Kennedy’s emphasis on race-neutral alternatives," "blithely asserted"  that alternatives like socioeconomic affirmative action "wouldn’t work," "paid lip service to Kennedy’s requirement that courts give 'no deference' on the question of whether alternatives can produce 'sufficient' racial diversity," failed to require the University to give definition to its goal of "critical mass," and "took an unnecessary dig at Kennedy’s contention that the Fifth Circuit had misapplied the Grutter precedent."

"Supreme Court Puts New Pressure on Colleges to Justify Affirmative Action."

The Chronicle of Higher Education sums it up in a headline.

But I question "puts." Will schools really feel that pressure? The court receiving Fisher v. University of Texas on remand feels some pressure as it must reexamine — once more, with feeling — the evidence already assembled. The University of Texas will feel some pressure to point out how the Court of Appeals can say what it said before in a newly convincing way — without all that language about deference and presumption of good faith. And maybe eventually this will wend its way back to the Supreme Court. Is anyone else really feeling pressure?

It seems to me that the Court has once again said what it always says about affirmative action and admissions: 1. Here, have some more time, and 2. Could you please speak about what you are doing in a somewhat more palatable way, okay, thanks?

"It offends me that the court failed to exert any kind of leadership with this decision."

Says William, in the comments in the previous post, apparently forgetting that whole notion of leading from behind.

The underlying issues are clear as a bell. By kicking the case back to the lower court for another look, the court simply deferred its ultimate responsibility.

But affirmative action is all in the timing. The Court manufactured delay the first time the issue came around. Then it did Bakke, giving schools a clue on how to move forward. (Say "diversity," and be like Harvard.) Then it let things ferment for 25 years, at which point, it said:

It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased... We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

Even if 25 years had already passed — it's only been 10 — the argument would be for an extension.

Like a schoolmarm, William insists "The underlying issues are clear as a bell."

That paper was due 40 years ago.

I'd say the answer is crushingly clear: We need more time.

"There is disagreement about whether Grutter was consistent with the principles of equal protection.... But the parties here do not ask the Court to revisit that aspect of Grutter’s holding."

The decorous Justice Kennedy, writing for the majority in today's opinion in Fisher v. University of Texas, refraining even from saying the word "overrule."

Revisit... as if we'll be paying a social call.

ADDED: Here's Justice Breyer at oral argument, nailing Fisher's lawyer down that he's not asking to overrule Grutter:




Later, when Fisher's lawyer said "I think you can fashion a result in this case which may or may not have to, quote, 'overrule' Grutter," Justice Sotomayor came out with the memorable line: "So you don't want to overrule Grutter, you just want to gut it":



So did the Court gut Grutter today? No, of course, not. That sounds so brutal. But it laid Grutter out on the carving board and advised the Court of Appeals to sharpen the knives.

ALSO: I'm rereading my own notes from my spring Conlaw2 class, when I taught Grutter along with the oral argument in Fisher and I find this, referring to Justice O'Connor's opinion in Grutter:

Is she damaging the SS test by applying it with deference and not attending to the loose fit between purported goal and policy adopted? (How can you gut it if it lacked guts?)

"The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities."

Justice Thomas, in today's opinion in Fisher v. University of Texas, likening affirmative action to slavery and segregation. ("Slaveholders argued that slavery was a 'positive good' that civilized blacks and elevated them in every dimension of life.... A century later, segregationists similarly asserted that segregation was not only benign, but good for black students.... Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign....")

"If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind."

Justice Ginsburg, quoting Professor Thomas Reed Powell, in today's opinion in Fisher v. University of Texas, mocking the notion of race-blind alternatives to affirmative action.

AND: What really distinguishes the legal mind is knowing whether you want 2 things to be the same or different and the skill and the nerve to say that they are. That is, it's not about what you think you are capable of thinking. It's about what you are willing and able to say. Powell is willing to deploy the dead metaphor inextricable attachment and to soothe you into thinking that you're better than other people — ugh, lawyers! — if you don't ask whether those 2 things really are inextricably attached.

The 2 things in today's context are: 1. taking race into account in admissions and 2. other admissions policies that would produce a racially diverse student body. 

The Supreme Court sends Fisher back to the lower court with instructions to take strict scrutiny much more seriously.

Here's the PDF of the opinion, which was 7-1. Instead of applying the "searching examination" of strict scrutiny...

... the Court of Appeals held petitioner could challenge only “whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith.” 631 F. 3d, at 236. And in considering such a challenge, the court would “presume the University acted in good faith” and place on petitioner the burden of rebutting that presumption. Id., at 231–232. The Court of Appeals held that to “second-guess the merits” of this aspect of the University’s decision was a task it was “ill-equipped to perform” and that it would attempt only to “ensure that [the University’s] decision to adopt a race-conscious admissions policy followed from [a process of] good faith consideration.” Id., at 231. The Court of Appeals thus concluded that “the narrow-tailoring inquiry—like the compelling-interest inquiry—is undertaken with a degree of deference to the Universit[y].” Id., at 232. Because “the efforts of the University have been studied, serious, and of high purpose,” the Court of Appeals held that the use of race in the admissions program fell within “a constitutionally protected zone of discretion.” Id., at 231.

IN THE COMMENTS: "Someone explain this to me like I'm ten, please and thank you." Okay. The Supreme Court has said that all race discrimination by the government — including well-intentioned, supposedly benign things like affirmative action — must be subjected to "strict scrutiny," which normally is said to require that the government have a "compelling interest" and that the discriminatory policy is "narrowly tailored" to serve that compelling interest. But in Grutter v. Bollinger, the narrow majority made it seem as though universities, if they used race as a factor in a holistic judgment about whom to admit, deserved some deference, and the Court of Appeals relied on that. Today, the Court seems to reject that reading of Grutter. Take into account that Fisher didn't ask for the Court to overrule Grutter, so that enterprise is pushed into the future. Also in the future, there's a pending case from Michigan about affirmative action. So the drama over affirmative action continues.

AND: Justice Ginsburg is the only dissenter, and she refers to her own dissenting opinion in Gratz. (Gratz was the companion case to Grutter. The majority upheld the University of Michigan Law School's "holistic" approach to affirmative action in Grutter but shot down the more mechanical methodology used in Gratz.)

I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. See Gratz, 539 U. S., at 303–304, n. 10 (dissenting opinion). As Justice Souter observed, the vaunted alternatives suffer from “the disadvantage of deliberate obfuscation.” Id., at 297–298 (dissenting opinion).

That is, forthright, transparent affirmative action is preferable.

It is race consciousness, not blindness to race, that drives such plans [as Texas's automatic admission of the top 10% in every high school].

In a footnote there, Ginsburg quotes a professor (Thomas Reed Powell): “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.” That is, only legalistic people think there's a way out of race consciousness.

MORE: Now, let's look at the concurring opinions. Justice Scalia has one short paragraph to underscore the fact the litigant in this case failed to ask the Court to overrule Grutter. He also joins the majority "in full." Justice Thomas has a much longer concurrence, which joins the majority but tips his hand: He's ready to overrule Grutter, and he wants to say "categorically" that a state may not use race at all in the admissions process.

Grutter was a radical departure from our strict-scrutiny precedents....

Attaining diversity for its own sake is a nonstarter....

[T]he educational benefits flowing from student body diversity — assuming they exist — hardly qualify as a compelling state interest....

There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits....

The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.

Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life....

A century later, segregationists similarly asserted that segregation was not only benign, but good for black students. They argued, for example, that separate schools protected black children from racist white students and teachers....

Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign....

Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates....

Tellingly, neither the University nor any of the 73 amici briefs in support of racial discrimination has presented a shred of evidence that black and Hispanic students are able to close this substantial gap during their time at the University....

The University admits minorities who otherwise would have attended less selective colleges where they would have been more evenly matched....

Moreover, the University’s discrimination “stamp[s] [blacks and Hispanics] with a badge of inferiority.” Adarand, 515 U. S., at 241 (opinion of THOMAS, J.). It taints the accomplishments of all those who are admitted as a result of racial discrimination.

Here, Thomas quotes John McWhorter: "I was never able to be as proud of getting into Stanford as my classmates could be. . . . [H]ow much of an achievement can I truly say it was to have been a good enough black person to be admitted, while my colleagues had been considered good enough people to be admitted."

ALSO: Finally, let's focus on how Justice Kennedy — writing for everyone but Ginsburg and Kagan — pushed the Court of Appeals back on its understanding of Grutter:

According to Grutter, a university’s “educational judgment that such diversity is essential to its educational mission is one to which we defer.” 539 U. S., at 328.

There's that deference. It's about finding diversity "essential." That's "an academic judgment" and judges "some, but not complete" deference is "proper" under Grutter. The lower courts "were correct" about that deference. The question is whether Grutter was correct to accept diversity as a compelling interest for Equal Protection Clause strict scrutiny analysis. Kennedy cautions (as Grutter itself cautioned) that diversity isn't just another way to say racial balancing.

Is there deference in determining whether there's narrow tailoring?

[A] court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. 

But, again, it's not complete deference. Grutter demanded "a careful judicial inquiry" into the  university’s "serious, good faith consideration of workable race-neutral alternatives." But the Court of Appeals only looked at "whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith." It spoke of presuming good faith at one point as it disparaged its own ability to figure out what admissions policies are needed.

Grutter did not hold that good faith would forgive an impermissible consideration of race....

So here the Court of Appeals misunderstood Grutter. The remand isn't to determine if Grutter should be overruled, but to try again, applying a less judicially restrained version of Grutter. The word "overrule" does not appear in Kennedy's opinion, only in the 2 concurring opinions. The closest Kennedy comes to talking about overruling Grutter is at page 9, in discussing diversity as a compelling interest:

There is disagreement about whether Grutter was consistent with the principles of equal protection in approving this compelling interest in diversity. See post, at 1 (SCALIA, J., concurring); post, at 4–5 (THOMAS, J., concurring); post, at 1–2 (GINSBURG, J., dissenting). But the parties here do not ask the Court to revisit that aspect of Grutter’s holding.

Revisit. A euphemism. Obviously, the nudge to ask what was not previously asked is sharp enough.

Immensely exciting morning at the Supreme Court.

Live-blogged at SCOTUSblog.

UPDATE 1: We're waiting for the University of Texas affirmative action case (Fisher), the 2 same-sex marriage cases (on Prop 8 (Hollingsworth) and DOMA (Windsor), and the Voting Rights Act case (Shelby County). I'm feeling that we're going to get a whole lot of minimalism here. Fisher will be about the peculiarities of the UT program. Prop 8 will fizzle on something technical. Windsor herself will keep her remedy, but DOMA will survive. And the Voting Rights Act will survive. If so, that will be the excitement of no excitement. Get ready.

UPDATE 2: The cert. grants have been announced, and they include review of the President's recess appointment power. The case arises out of Obama's interpretation of what counts as a congressional recess, and involves 3 appointments to the NLRB. Details on the case — NLRB v. Canning — here. More details here.

UPDATE 3: The Court affirms the 7th Circuit in Vance, 5-4, Alito writing: "a supervisor for vicarious [liability] under Title VII only if she has the power given by the employer to take tangible employment actions against the victim." The 4 dissenters are the 4 liberals.

UPDATE 4: Another opinion by Alito, Mutual Pharmaceuticals v. Bartlett. Also 5-4. Federal law about drug warnings preempts state law remedies based on "design defect."

UPDATE 5: In Vance, Ginsburg, dissenting, compares the majority's narrow reading of the statute to Ledbetter, which became a big political issue. Congress subsequently amended the statute. So Ginsburg says: "Congress has, in the recent past, intervened to correct this Court’s wayward interpretations of Title VII.... The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today." I assume the majority has no problem with that. It's statutory interpretation, and if Congress wants this greater liability for employers, it can/should amend the statute.

UPDATE 6: Breyer writes the 7-2 opinion in U.S. v. Kebodoeux: "Registration requirement under SORNA as applied to Kebodeaux falls within the scope of Congress's authority under the Necessary and Proper Clause." SORNA is the Sex Offender Registration and Notification Act. The dissenters are Scalia and Thomas.

UPDATE 7: Fisher! 7-1, only Ginsburg dissenting. Vacated and remanded "because the Fifth Circuit did not hold the university to the demanding burden of strict scrutiny articulated in Grutter and Bakke, its decision afffiming the district court's grant of summary judgment was incorrect." (I'm starting a new post for Fisher and working on reading the case.)

UPDATE 8: The last opinion is UT Southwestern v. Nassar, also by Kennedy: "The Court holds that Title VII retaliation claims must be proved according to traditional principles of 'but for' causation..." This one is 5-4, split as you'd predict a 5-4 split would split. Ginsburg writes the dissent.

UPDATE 9: There will be more opinions tomorrow.

Why is Fisher taking so long?

Linda Greenhouse says:

One reason might be that Justice Anthony M. Kennedy, who almost certainly received the opinion assignment in the Texas case, isn’t going far enough in that case to satisfy the other conservative justices. Under this theory, those justices responded to what they saw as a frustratingly narrow Kennedy opinion by jumping aboard the Michigan case as the next potential vehicle for shutting down affirmative action....

Fisher is the case argued last October, about the University of Texas affirmative action program, but the court granted cert. just last March in a case about Michigan's ban on all affirmative action in public university admissions. (That case is called Schuette.)

"What opinions will the Court issue today?... What’s the last day the Court will issue opinions?..."

We don't know what cases will come out today, but over at SCOTUSblog, where they'll live-blog the announcements (beginning at 9:30 ET), they predict that last day will be June 26 or 27 and that the same-sex marriage will come out on the last day. Here's the chart showing when cases were argued and which remain undecided. The one we've been waiting longest for is Fisher, the affirmative action case.

ADDED: Here's the live-blogging. I'll keep my eye on it. The other important case that could come out today is Shelby County, about Congress's power and the Voting Rights Act.

Any big Supreme Court decisions coming out today?

If so, we'll find out soonest by following the SCOTUSblog live-blogging here.

ADDED: The Court granted cert. in an Establishment Clause case, Town of Greece v. Galloway, about whether "a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity." SCOTUSblog opined that it's "a potentially significant religion case" because "The Roberts case has not done much in that field so far." My instant impression was they granted cert. to reverse and it's obvious (based on precedent).

AND: This chart shows which cases are undecided from each month of the term so far. All the November cases have been decided, but one case remains from October, Fisher v. University of Texas, the affirmative action case. There's also a chart which shows which Justices have written the cases from each "sitting," and that chart makes it appear that Kennedy is writing the affirmative action case.

ALSO: No Fisher today.