Symposium: Incremental in name only

Melissa Hart is Professor of Law and Director of the Byron R. White Center for the Study of Constitutional Law at Colorado Law, University of Colorado Boulder.

Just slightly over two years ago, I wrote a post on SCOTUSblog reacting to the Court’s opinion in what we will now forever refer to as “Fisher I.”  I concluded that post by noting that “[i]f the Court reaches out to reconsider [its] ruling in the next few years, the activism of the Court’s conservative wing will be hard to overlook.” Not surprisingly, then, I feel I must start here by noting that the activism of the Court’s conservative wing in taking what we will now forever refer to as “Fisher II” is hard to overlook.

The reasons not to have taken this case were many and clear.  The vehicle problems that were evident when the Court considered this case two years ago are even more absurd today.  First, as was true the first time around, Justice Elena Kagan is recused from this case, presumably because of her work on it when she was the Solicitor General.  The case will therefore be considered once again by only eight of the Justices. When the question at issue in the case is a matter of such national importance, and one on which there is so much national division, it would be more appropriate for the full Court to participate in its resolution.  There are two other affirmative action cases making their way through the courts right now, so it is predictable that the Court would not have lost its opportunity to consider these questions in due course. (Though possibly with personnel changes at the Court.)

Even more troubling, this case lacks the constitutionally requisite “case or controversy” because Abigail Fisher never had standing and any claim she might theoretically have possessed is now moot.  The evidence in the record shows that Fisher never had a claim.  Based on her grades and SAT scores there was no way she could have been admitted to the University of Texas in 2008 – no matter what her race.  Moreover, unlike other plaintiffs who have challenged equal opportunity affirmative action plans, Fisher chose to bring her suit as an individual, rather than as a class claim.  She has now graduated from college – three years ago – and can never be admitted to the University of Texas undergraduate program.  Her claim is moot.  In any other context, the lack of standing and mootness would trouble the Court’s conservative wing.

So, why did the Supreme Court take Fisher II?  Just two short years ago, the Court directed the Fifth Circuit to reconsider Texas’s admissions policy using the test set forth in Fisher I.  If the Court believed there could be only one outcome when that test was applied, it should not have sent the case back to the Fifth Circuit, but should simply have decided the fate of Texas’s plan itself.  I am afraid that the reason the Court waited may be tied to the much-lauded, but spurious “incrementalism” of the Roberts Court.

Many supporters of affirmative action – of which I am one – have sought comfort in the fact that the question presented in Fisher II, like that presented in Fisher I, seems to assume the continuing validity of the Court’s existing affirmative action jurisprudence—including the 2003 Grutter v. Bollinger decision affirming the validity of diversity in education as a compelling state interest.  They note that even Justice Antonin Scalia seemed, in his concurring opinion in Fisher I, unwilling to overrule Grutter when Fisher had not asked for that.  But Justice Scalia’s concurrence does not reference the question presented, but instead the transcript of the oral argument, in which Fisher’s counsel responds to a question from Justice Stephen Breyer by stating that Fisher was not arguing that the Court should overrule Grutter.  I very much doubt that Fisher’s counsel will give the same answer this time around.

Indeed, the petition for certiorari in Fisher II, while citing Grutter, is written with little mention of the benefits of diversity in higher education and a heavy emphasis on the “traditional and demanding constraints of strict scrutiny” that Fisher I held must be applied to consideration of a university’s consideration of race as a factor in admissions. And the petition specifically urges (strategically cobbling together quotes from Justice Anthony Kennedy’s concurring opinion in City of Richmond v. J.A. Croson Co.) that “[e]liminating racial preferences in education altogether would honor ‘important structural goals’ by eliminating ‘the necessity for courts to pass upon each racial preference that is enacted.’”  The amicus briefs supporting the petition were even more forthright, with almost every one of the eight briefs filed urging the Court to take Fisher II and use it as a vehicle to overturn Grutter.

So, try as I might to come up with a different answer to the question of why the Court granted cert in Fisher II, I am left with the conclusion that the Court took this case to hold that universities may not consider race in admissions – even as part of a holistic, individualized review process.

If so, then the one-two punch of Fisher I and Fisher II will be the most recent in the Roberts Court’s unique kind of “incremental” decision making.  We saw it in the voting rights context with NAMUDNO v. Holder and Shelby County v. Holder.  We saw it in campaign finance with FEC v. Wisconsin Right to Life, Inc. and Citizens United v. FEC.  There is some significant likelihood we will see it in another case this Term if the Court grants the petition in Friedrichs v. California Teachers Association and revisits the question of the constitutionality of public-sector union agency fees, which it considered just a few years ago in Harris v. Quinn.  This pattern is not incrementalism but a particularly cynical type of activism.