With a bang and a whimper, the Supreme Court Thursday morning resolved two of the three big cases that had remained on its docket. And once again we see that what Justice Anthony Kennedy wants, the country gets.
Going into this month, the big cases the Court had left to decide involved abortion, affirmative action and immigration. The abortion case will be decided on Monday; today, we got the resolution of the affirmative action and immigration cases. On affirmative action, the Court decided by a 4-3 vote that the University of Texas' race-conscious admissions program was constitutional. On immigration, the Court evenly split 4-4, affirming the lower court's decision that put President Obama's deferred deportation plan on hold.
The University of Texas decision shows that the decades-long effort by the right to have the Supreme Court put an end to all affirmative-action programs has failed. There's no denying this campaign was moderately successful — in a series of rulings in the 1990s and 2000s, the conservative Court said that all affirmative-action programs have to be scrutinized by courts just as closely as programs that harm racial minorities.
However, conservatives tried this time to get the Supreme Court to go one step further and say affirmative action is not only subject to the highest level of review, but is always unconstitutional. In other words, the right wanted the Court to end affirmative action completely. The Court reassured those of us who support affirmative action as a way to make up for the myriad lingering effects of centuries of official racism that it would not go that far and that affirmative action is sometimes constitutionally permissible. Though today's case is limited in effect to just the University of Texas for now, its meaning is profound in this rejection of the absolutist position.
The case arose from Abigail Fisher, a rejected white applicant to the University of Texas. Even though her scores were thoroughly mediocre and plenty of better qualified African-American and Latino candidates were rejected (and dozens of white students with worse scores were admitted), Fisher claimed that she was not admitted because of her race. The University of Texas admitted that race was one of a slew of factors that it's used in considering applicants, but that it has a good reason to do so — since it sees racial diversity as an important part of the educational experience, and programs it has tried in the past haven't worked well enough.
Fisher's lawsuit against the university, conceived of and bankrolled by a former stock-broker who's also voting rights, was before the Supreme Court for a second time today. The first time, in 2013, resulted in the Supreme Court sending the case back to the lower court.
Today's decision, written by Justice Kennedy on behalf of himself and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor (Justice Elena Kagan was recused), agreed with the lower court's decision. Kennedy's opinion did not give its blessing to all affirmative-action programs — far from it. But he did say that Texas gets to decide its own goals, and that its stated goal of educational diversity is an important one under the Constitution because it helps break down stereotypes, promote cross-racial understanding, prepare students for a diverse world and give legitimacy to leaders in the future. And, given the history at the University of Texas, there were no race-neutral options available to the school that would have accomplished this goal.
The bottom line going forward: While each public university wanting to have an affirmative-action program will have to pass this same test under its own set of facts — still a difficult burden — today's decision shows that it is in fact possible to pass this test, much to the chagrin of the conservatives on the Court and in this country who believe that we as a country are done with race and that it should never be used to help racial minorities.
Texas lost the affirmative-action case, but won its immigration case today, albeit in a completely different manner. Combining the majority and dissenting opinions, the affirmative-action case decision was 75 pages long. The immigration case decision, on the other hand, was all of nine words long. The Court split 4-4, and when that happens, the decision is nothing more than one sentence saying, "The judgment is affirmed by an equally divided Court."
What this means is that the Court approves the decision of the lower court, but that there is no opinion from the Supreme Court explaining the position. Thus, we have no reasoning from the Court or any of the justices. In fact, we don't even know which justices voted which way.
We can guess, though, and most likely — given the oral argument as well as the politics on the Court — the four conservatives voted against the Obama administration's policy, while the four liberals voted for it. The president had been hoping to get either Justice Kennedy or Chief Justice John Roberts to side with his view of presidential power (or to kick the case out for procedural reasons), but neither budged.
The case involved the president's order to defer deportation of undocumented immigrants who are the parents of American-citizen children. This would have saved four or five million people from the threat of deportation. After the president announced the plan, Texas, along with 25 other states, sued, claiming that only Congress could change the law in this fashion and that the president could not do so alone. The lower-court judge in Texas preliminarily sided with the states, finding that, until the case went through a full trial, the president's order had to be put on hold because he had likely overstepped his authority. This was not a final ruling on the issue, but it did mean that the deportation delay would not take effect until the case was fully decided.
With this weighty issue of Congress versus the president, as well as the fate of millions of people, before the Court, the justices couldn't come together for a coherent ruling. The split 4-4 decision means that the lower-court judge's order remains in effect and that the case can proceed to trial. The final determination on the constitutionality of this program will come in the future.
However, in the meantime, the program cannot take effect. Ultimately, politics will decide its fate. If Donald Trump wins the presidency in November, he will rescind the Obama administration's order, and the case will disappear. If Hillary Clinton wins the presidency, she will likely keep the policy, and the case will continue. Also if she wins, there will likely one day be a ninth justice on the Court — one who is presumably liberal and will presumably vote to uphold the order.
There are of course no guarantees, but spinning out the future of this program gets us to the same answer as almost everything else in this country — it's all about the election. If you want parents of American citizens deported, you should vote for Trump. If you want parents of American citizens to stay with their kids, you should vote for Clinton. It's that simple after today's ruling.
Both of these cases are also a stark reminder that Justice Antonin Scalia's February death drastically altered the Supreme Court, constitutional law and this country. Had he still been on the Court, the affirmative-action case would either have been a 4-4 split or he might have convinced Kennedy to go a different way. On immigration, we would have had a 5-4 decision likely lambasting the president's immigration order.
But without him, we are in a different world — one of continued Senate intransigence in confirming a ninth justice, but one that continues to be determined by the whims of Justice Kennedy.