So of the four landmark decisions anticipated this week in the Supreme Court, three (involving Prop 8, DOMA and the Voting Rights Act) are still in suspense, while the decision on the fourth—Fisher v. UT—was decided on the narrowest possible grounds.
The Fisher case, a direct challenge to the University of Texas’ diversity preferences, was widely expected to produce a repudiation or significant curtailment of the ability of institutions of higher education to make diversity one of multiple goals in college admissions decisions. As anticipated, Justice Kennedy wrote the majority opinion. But instead of a controversial 5-vote decision (Justice Kagan recused herself because of her prior involvement in the case as Solicitor General), Kennedy stuck to the narrowest available ground for deciding the case in favor of the plantiff challenging the diversity policies: remanding the case to the appeals court with instructions to determine whether the university met “strict scrutiny” standards for choosing the particular policies they used as opposed to race-neutral alternatives. Only Justice Ginsburg dissented.
Some will call this decision a compromise, and others a “punt.” Standing by itself, Fisher is a reprieve, however temporary, for university affirmative action programs. If the Court goes on to kill Section 5 of the Voting Rights Act later this week, then Fisher could be remembered as part of a conservative court’s walk-back of race-conscious efforts to fight racial discrimination.
The Court decided two less heralded cases involving employment discrimination rules—both in favor of employers.
And the Chief Justice announced the Court will be back to announce more decisions tomorrow. Since it’s customary to announce the end of the Term earlier than the day before, that suggests there will be a third Decision Day this week, presumably Wednesday or Thursday.
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