by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Last week, in Fisher v. University of Texas at Austin, the US Supreme Court upheld UT’s use of racial preferences in its admissions program. Justice Kennedy not only sided with the majority, he wrote its opinion, which came as a surprise given that he had never before voted in favor of racial preferences.
There is nothing in the opinion itself that would explain this unexpected change of heart. It is, as Mark Pulliam describes it in a recent post at liberylawsite, “an embarrassing mess.” In a long and withering dissent, Justice Alito smashes Kennedy’s reasoning to bits, often using quotes from Kennedy’s previous opinions to do so. As Pullman says:
Alito exposes the incoherence, flaccid reasoning, oversights, and intellectual dishonesty necessary to uphold, under the “strict scrutiny” test, the same arguments, and the same record, that the Court rejected three years ago [in a previous opinion in the same case written by Kennedy].
If well-considered judicial reasoning cannot explain Kennedy’s decision, what can? Pullman proposes an intriguing psychological explanation based on insider reports of what happened when the Supreme Court heard the case for the first time in 2013:
A five-justice majority in Fisher I was prepared “to strike down the UT program and restrict affirmative action nationwide,” according to Joan Biskupic, author of the 2014 book Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice. Biskupic’s research indicates that Kennedy, writing for the initial 5-3 majority in Fisher I, changed course to placate Justice Sonia Sotomayor, who had circulated a “scathing dissent that led the majority to back down.” Sotomayor’s proposed dissent, “suffused with the personal experience of her Puerto Rican Bronx background,” denounced “the majority’s attitude toward race and racial policy. The tone from the nation’s first Latina justice: You haven’t lived it and you don’t get it.” Biskupic’s account states that “Kennedy wanted to lower the temperature among the justices …. Kennedy amended his opinion to allow the UT program to stand—temporarily at least—and to return the case to the Fifth Circuit for another review.” … Thus the calculatedly tame 7-1 opinion.
This could easily be a scene from Tom Wolfe’s classic article, “Mau-Mauing the Flak Catchers,” in which he describes hapless bureaucrats in a San Francisco welfare office being intimidated by savvy race hustlers who cynically exploit the well-meaning functionaries’ white guilt to extract concessions….
The only plausible explanation for Kennedy’s change of position is that he wanted to avoid another confrontation with Sotomayor. Like the cowardly bureaucrats lampooned by Tom Wolfe, Kennedy shrank beneath the mau-mauing of Sotomayor.