By Noah Feldman
And on affirmative action, the Supreme Court's holding is ... ticktock.
That's the sound of the countdown clock on race-based college admissions that Justice Sandra Day O'Connor started in 2003, when she wrote for the court that she expected such policies might be necessary (and therefore constitutional) until 2028.
In Fisher v. Texas, Justice Anthony Kennedy, writing for a 7-1 majority, declined to strike down the University of Texas's use of race as a factor in admissions. Yet he strengthened the requirement that the state prove its program was strictly necessary, signaling that the end might be approaching.
The decision gave something to everyone and signaled that Kennedy is, despite himself, influenced by O'Connor's frank pragmatism even though she's no longer on the court.
The fact that Texas's plan wasn't struck down counts as a win for affirmative-action advocates, who feared Kennedy might provide the deciding vote to require perfect race neutrality. It also explains why the liberal Justices Stephen Breyer and Sonia Sotomayor joined the decision.
When O'Connor retired and was replaced by Justice Samuel Alito, there was reason to think that the delicate compromise she had crafted in essence preserving affirmative action while noting that its days were numbered wouldn't last long. After all, Kennedy, who became the court's swing vote post- O'Connor, had joined the main dissent in the landmark 2003 case Grutter v. Bollinger in which then-Chief Justice William Rehnquist would have struck down the University of Michigan's "race-plus" admissions system.
In deciding to take the Fisher case in October, the court's conservatives were seen as signaling that they expected Kennedy would join them in overturning race-conscious admissions for good. That he didn't do so yet should give supporters of affirmative action some hope.
Now, in Fisher, Kennedy sent the case back down to the district court to redo its analysis. And he did it with special emphasis. The court should defer to the University of Texas's educational expertise in claiming the importance of diversity, Kennedy said.
But when it came to the specific program adopted to achieve that diversity, the court should not defer at all: "The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity."
That is a very high requirement, and a win for affirmative action's opponents. It sets the stage for the lower courts potentially to find that Texas could achieve diversity without expressly considering race.