Suffolk University Law School Professor Robert Smith says that the long-delay in issuing the Fisher v. University of Texas decision and the unusual coalition of justices joining Justice Anthony Kennedy’s extremely narrow majority decision reveal the inability of a majority of justices to reach agreement on the most important questions about affirmative action in college admissions: Does the Constitution totally banRobert Smith consideration of race in college admissions? If not, what types of limited consideration of race is permissible?

Smith is the former dean of the Law School and teaches Constitutional Law, Mediation, Supreme Court Seminar and Clinical Teaching. Among Smith’s professional affiliations is the Lawyers Committee for Civil Rights Under Law.

Coalition of justices

Smith notes that Justice Kennedy was joined by four justices who have staked out very clear anti-affirmative action positions in prior decisions (Roberts, Scalia, Thomas, Alito) and two who have expressed support for affirmative action (Breyer, Sotomayor). To bring such a coalition together, he crafted an opinion that did nothing to advance or clarify the Constitutional issues surrounding affirmative action.

“Instead, Kennedy’s opinion is largely a repetition of general propositions from earlier decisions, and he is careful to do so in a way that neither rejects nor reaffirms them," said Smith. "While Justices Scalia and Thomas filed concurring opinions indicating their desire to overturn previous decisions such as Grutter v. Bollinger, Justice Kennedy 'ducks' that question by pointing out that “the parties here do not ask the Court to revisit that aspect of Grutter’s holding.

Looking forward

“As a result of the inconclusive result in Fisher, focus should shift to the next affirmative action case on the Court’s docket for next year – Schuette v. Coalition to Defend Affirmative Action. The Court will be reviewing the constitutionality of an amendment to the Michigan state constitution prohibiting any consideration of race in public employment and public education. That amendment achieves, for the state of Michigan, a total ban on affirmative action. The lower court ruling being reviewed by the Supreme Court held that the Michigan amendment is unconstitutional – that it cannot create a state constitutional ban on affirmative action.

“If the Supreme Court were to reverse the lower court in Schuette and rule that Michigan can create a constitutional ban on affirmative action, then it could achieve what conservatives might consider a ‘second-best’ option. The four conservative justices were unable in Fisher and earlier Supreme Court decisions to have the Supreme Court create a national ban on affirmative action (as part of U.S. constitutional law). But if the Court upholds the Michigan constitutional amendment, it would allow for state-by-state bans of affirmative action that would not be subject to Supreme Court review.

“It is likely, however, that the court will not allow the Michigan amendment to stand. Justice Kennedy is likely to refuse to join the four conservative justices in allowing a total ban on affirmative action, much as he has done in prior affirmative action decisions.”