Supreme Court Justice Anthony Kennedy’s retirement augurs fast and profound on-the-ground changes in a long list of policy areas that directly touch citizens’ lives. Among these, no doubt, is the use of affirmative action in higher education.
Kennedy famously abandoned his long-standing skepticism about affirmative-action programs – for example in his 1989 concurrence in City of Richmond v Croson — to cast the deciding vote in 2016 in Fisher v. University of Texas upholding the use of race as a factor in the college-admissions process.
As with other areas of social turmoil, most notably reproductive rights, Fisher seemed to settle, temporarily but indefinitely, the use in the United States of affirmative action in higher education, effecting a sort of compromise that permitted such programs but in narrow circumstances and with strict limits.
Thus, Kennedy and the Court agreed to uphold the Texas plan because it had
“concrete and precise goals – e.g., ending stereotypes, promoting ‘cross-racial understanding,’ preparing students for ‘an increasingly diverse workforce and society,’ and cultivating leaders with ‘legitimacy in the eyes of the citizenry’ — that mirror the compelling interest this court has approved in prior cases.”
At the same time, the opinion was far from a ringing endorsement of affirmative action in higher education. Kennedy insisted that the programs’ constitutionality had to be evaluated under the exigent legal standard of struct scrutiny and that the university had to periodically reassess its programs constitutionality and efficacy.
Given the list of nominees the president is considering, Kennedy’s replacement is extremely likely to part company with Kennedy, and take up company with the three dissenters in that case, Chief Justice Roberts, Clarence Thomas, and Sam Alito, all of whom remain on the Court. Justice Neil Gorsuch has yet to participate in a Court case presenting the issue, but he is all but certain to remain in the fold.
Indeed, the center of the Court has moved in a day from Justice Kennedy to Chief Justice Roberts, who wrote in a 2007 case involving magnet public schools, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That is of course a questionable statement as an empirical matter, but it is likely soon to be the law of the land as a constitutional matter.
I say “soon,” because a huge and cross-cutting effect of Kennedy’s departure, not greatly considered in the initial spate of reports on the retirement, is the impact it wil; have on the Court’s agenda-setting function. The Court not only decides the most important cases in the country; it decides which cases those are. It sets its own agenda and by its rules, a vote of four Justices suffices to “take cert,” or bring the case to the Court’s consideration.
Kennedy’s centrist presence on the Court produced a braking function at the cert stage. Each bloc of four justices had to apply caution, not knowing how a case might come out if they voted to take it.
That institutional restraint is now shattered. A new conservative bloc – comprising Thomas, Alito, Gorsuch, and the new nominee – will be able to boldly canvass the lower courts in area after area for decisions that will shape the law in the direction they like, knowing that the only obstacle to their desired result on the merits will be the Chief Justice.
And the situation of the liberal bloc becomes as glum as that the conservative bloc is triumphant. It will have to be nervous about the Court’s resolution of cases in numerous well-settled areas, and act defensively — including trying to prevent the Court from taking the cases in the first place — even when evaluating cases that seem as if they would previously have been clear winners.
And this tidal change in the dynamic of the Court will likely last two generations. In a nation poised for the last 18 years on the knife’s edge of division between red and blue, control of the judicial branch, and with it the prospects for controls on excessive assertions of power by the other branches, has now passed definitively and for the long term to one party. The consequences are hard even to fathom.
Harry Litman is a former is a former United States attorney and deputy assistant attorney general. He teaches constitutional law at UC San Diego. He clerked for Justice Anthony M. Kennedy during the 1988-89 Supreme Court term.