Fisher v. Texas: How a 4-4 Opinion Becomes a 7-1 Landslide

A 7-1 opinion in an affirmative action begs explanation beyond the holding itself.  The best I can do is offer reasoned speculation.  As I noted earlier today at Education Law Prof Blog, the Court neither upheld nor struck down the Texas higher education admissions policy in Fisher v. Texas.  Instead, the Court said the lower court was too deferential in reviewing Texas' admission policy and must take another more rigorous review of the plan.  Because the Court did not affirm the lower court and uphold the plan, the result in Fisher suggests hostility to affirmative action.  Yet most affirmative action advocates expected a much worse result, particularly if Justice Kennedy was to write the majority opinion.  With Justice Kagan on the sidelines, there was no way to 5 votes to uphold the plan in its entirety, even if the three liberals could convince Justice Kennedy. So the only way Justice Kennedy writes a majority is if he is dancing on affirmative action's grave.  Wrong.

The final opinion was not even close, and Justices Sotomayor and Breyer join the majority in overturning the court of appeals and sending it back.  The fact that they joined the majority, and only Justice Ginsberg dissented, belies an unexpected message: the Fisher majority written by Justice Kennedy is not the end of affirmative action in higher education.  Justices Breyer and Sotomayor would have never signed onto to the end of affirmative action, but they signed onto this opinion.  So how did they get there?  Presumably with a lot of jockeying to save affirmative action in higher education through indirection.

My best guess is that the initial vote as to whether to gut Grutter entirely was 4-4, with Kennedy refusing to go that far.  A 4-4 split was my best case scenario for Texas heading into the case.  This 4-4 initial vote is a relatively solid thesis now.  In the case of a 4-4 tie, the lower court would have been upheld and nothing at all would have changed.  This clearly would have incensed the 4 most conservative members of the Court.  And even though Justice Kennedy may not have been prepared to completely end affirmative action, maintaining the status quo was not his desire either.  My hope and intuition before the case was that he might hate the end of affirmative action in admissions more than the continuation of the status quo.  But, of course, he is smarter than me and the final opinion and vote in Fisher suggests a compromised third position for Justice Kennedy: join the majority and bring two dissenting liberals with him, so that he would be in a position to write the majority.  This had the effect of putting Scalia and Thomas in the disgruntled concurring camp, rather than more squarely in control of the majority.

And that is how sausage and Supreme Court opinions are made--I assume, since I know nothing directly of either.  And like much leglisative sausage, this may be an opinion strong on symbolism and weak on effect.

Comments

[Phil Pucillo]

Derek,

It seems to me that an affirmation of the judgment below based upon a 4-4 split of the Justices wasn't a possibility here. From what I can tell, there were never more than three votes (Ginsburg, Breyer, and Sotomayor) to affirm. The doom of the Fifth Circuit's judgment was ensured by the inclination of the remaining five Justices (Kennedy included) to vacate and remand. The only question was whether to do so on the basis that Grutter must be overruled or on the basis that Grutter was misapplied. Even if Roberts, Scalia, Thomas, and Alito were prepared to overrule Grutter, they likely realized that, at best, they'd end up with a plurality opinion with no long-term significance. Better to go with Kennedy and ensure that the judicial review envisioned by Grutter would be more rigorous than before.

Phil Pucillo

[Derel Black]

Phil, Thanks for the comment. I think your explanation was the odds on rationale before the opinion and I agree that the final opinion can probably still be squared with that. Yet, there is still the problem of why did Sotomayor and Breyer join the majority. The simple answer could be that they agree. Case closed, but I am skeptical. Another reason might be to deflate the case and make it look less contentious, which might have some public reaction benefits. The case certainly has an anticlimactic result, but Sotomayor and Breyer don't write a word in the case, so it is hard to see how this explanation makes a lot of sense unless they actually extracted something from the majority by joining. Maybe they did. Maybe the majority softened its approach to reach 7-1. But was that softening sufficient to justify two liberal moving into the majority. I doubt it. If Kennedy was with the Scalia, Thomas, Roberts and Alito all the way, they had five votes and never needed Sotomayor and Breyer, and there is no reason for Scalia or Thomas to concur. So maybe Kennedy was not with the conservatives all of the way and two liberals slid in to produce a weaker majority opinion. This, of course, still does not make 4 or 5 votes, which is the weakness is my thesis, as I can't explain why Roberts and Alito join Kennedy, unless the prospect of not doing so meant a 4-3-1 opinion that they wanted to avoid for clarity's and precedent's sake.