Michelle Olsen writes at Appellate Daily:
The U.S. Supreme Court’s latest affirmative action decision has been criticized as anticlimactic and even inconsequential. Justice Stephen Breyer doesn’t think so.
Speaking earlier this month in Aspen, Colorado, Justice Breyer explained why Fisher v. University of Texas at Austin matters and expressed relief at the result.
Breyer shared the stage with Margaret Marshall, retired chief justice of the Massachusetts Supreme Judicial Court, and moderator Elliot Gerson, a former clerk to U.S. Supreme Court Justice Potter Stewart. Gerson now serves as an executive vice-president at the Aspen Institute, a think tank that sponsored the presentation, the Susman Conversation on Individual Constitutional Rights (pictures).
Gerson asked Breyer about the Fisher affirmative action case, noting “that the media seemed to dismiss [it] as insignificant.” The Supreme Court in Fisher returned the dispute to the lower court, eight months after argument, with little commentary.
Dressed casually and still wearing a sling due to a serious bicycle accident in April, Breyer gave a brief history of affirmative action at the Supreme Court, as background. He touched on Regents of the University of California v. Bakke (1978), Grutter v. Bollinger (2003), and Fisher.
Bakke and Grutter held, in Breyer’s admitted shorthand, that “you can use affirmative action, but be careful, don’t go too far.”
When the same issue reached the Court again in Fisher, “there was a lot of speculation,” Breyer told the audience. “Would there be a change? Would [the justices] say no affirmative action? What would the Court do?” Breyer asked, repeating the questions on many people’s minds.
“I can tell you what the Court did do,” Breyer continued, with his characteristic verve.
“Seven members of the Court said Grutter is the law. So, what do I say? ‘Phew,’” drawing laughter. “I say that’s right; that was my view. Grutter is the law.”
With each case, Breyer pointed to numbers. Justice Lewis Powell’s solo concurrence in Bakke became a five-justice majority in Grutter, which became a seven-justice majority in Fisher.
In other words, five is better than one, and seven is better than five. Fisher was not meaningless; affirmative action left the Court stronger this term than it came in.
“So, that’s why I think it’s an important case,” Breyer concluded. “Sometimes an important case is simply reaffirming another case, which reaffirmed another case.”
The Court has already agreed to review affirmative action again in the upcoming term, which will test Breyer’s optimism. The new case is about a Michigan constitutional amendment that prohibits preference based on race or gender in public university admissions decisions.
Breyer acknowledged an ongoing “war” in the law related to affirmative action, including a close division among the justices.
Under one view, Breyer observed, the Fourteenth Amendment’s Equal Protection Clause is colorblind, meaning no discrimination for or against because of race. Another view, “closer to my own,” Breyer stated, is that the Amendment was intended to be inclusive, that is, to include African Americans, who had been slaves, into society.
Breyer discussed the role of dissents and how they can improve the majority opinion, perhaps an insight into Fisher. The only thing the public sees are “failed dissents,” as Breyer put it, the ones that didn’t persuade.
Breyer explained that justices sometimes work for months on dissents, only to scrap them when their persuasive points change the majority. “That is a common experience,” according to Breyer.
A veiled reference to Fisher? Maybe, maybe not. If so, it could partially account for the long delay between argument and decision in Fisher.
On July 16, the Federalist Society's Civil Rights Practice Group produced a podcast: "Supreme Court Update: Fisher v. University of Texas at Austin." Taking part were:
Hon. Peter N. Kirsanow, Commissioner, U.S. Commission on Civil Rights, and Partner, Benesch Friedlander Coplan & Aronoff LLP
Commentary by: Prof. Gail Heriot, Commissioner, U.S. Commission on Civil Rights, and Professor of Law, University of San Diego School of Law
Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society
You can listen to it here.