Despite a 7-1 vote in Fisher v Univ of Texas overturning lower courts’ rulings that the University of Texas’ use of race in admissions was permissible, the Supreme Court opinion seems to be rather narrow and is likely not a definitive a move against affirmative action despite the lopsided vote count. The Court seems merely to have said that lower courts erred in accepting that the University’s claims of acting in good faith rendered unnecessary the “strict scrutiny” approach to the law. In other words, regardless of the University’s motives, the lower courts should have, but did not, try to determine how the use of race “works in practice” and whether the use of race is narrowly tailored to be used only to the extent it is absolutely required to achieve desired levels of diversity (which they accept as a compelling interest) among the student body.
In short, the Court did not actually say that the use of race in this case was unconstitutional.
This strikes me as something worked out among the justices to reach a conclusion that most of them could live with…to go along with a bunch of 5-4 decisions also released today, none with as much anticipation as this ruling which is rather a let-down, having made essentially zero change to the status of the permissibility of affirmative action.
The Court will hear another case on affirmative action (from the University of Michigan) in its next term. As with Fisher, Justice Kagan will be recused because of her prior work on the case while working for the Obama administration.
Additional info here: