Affirmative Action

The Supreme Court Surprises in Fisher v. University of Texas

The Supreme Court just handed down its opinion in Fisher v. University of Texas at Austin, a landmark affirmative action case. What did the Court rule?

By David Lat on June 24, 2013 10:35 am

Finally. The Supreme Court has issued its long-awaited ruling in Fisher v. University of Texas, the closely watched affirmative action case.

And the result might surprise you. Justice Anthony M. Kennedy wrote for the Court, which should shock no one. But here’s a surprise: the vote breakdown was 7-1 (with Justice Kagan recused).

How did Justice Kennedy garner seven votes for a ruling on one of the most controversial issues of our time?

By writing narrowly, based on existing precedents, and dodging some of the big issues. Many observers expected a 5-3 ruling striking a significant blow against affirmative action, but that’s not what we wound up with. SCOTUSblog summarizes as follows (in their great liveblog):

The Fifth Circuit [opinion] is vacated and [the case is] remanded. The holding is because the Fifth Circuit did not hold the university to the demanding burden of strict scrutiny articulated in [the prior affirmative action cases of] Grutter and Bakke, its decision afffiming the district court’s grant of summary judgment was incorrect.

Justice Ginsburg dissented — and read her dissent from the bench, an uncommon occurrence saved for important cases. Justice Thomas issued a typical CT concurrence, one not big on stare decisis, saying he would overrule Grutter. Justice Scalia also concurred, noting that because Fisher did not ask the Court to overrule Grutter, he joins the opinion of the Court in full.

We’ll have additional commentary on this later today, so check back soon. In the meantime, you can access all the opinions via the links below.

Fisher v. University of Texas at Austin: Opinion [U.S. Supreme Court]
Fisher v. University of Texas at Austin [SCOTUSblog]