The U.S.
Supreme Court’s latest affirmative action decision has been
criticized as anticlimactic and even inconsequential. Justice Stephen Breyer
doesn’t think so.
Speaking
earlier this month in Aspen, Colorado, Justice Breyer explained why Fisher v. University of Texas at Austin matters
and expressed relief at the result.
Breyer shared
the stage with Margaret Marshall, retired chief justice of the
Massachusetts Supreme Judicial Court, and moderator Elliot Gerson, a former clerk
to U.S. Supreme Court Justice Potter Stewart. Gerson now serves as an executive
vice-president at the Aspen Institute, a think tank that sponsored the
presentation, the Susman Conversation on Individual Constitutional Rights (pictures).
Gerson asked
Breyer about the Fisher affirmative action case, noting “that
the media seemed to dismiss [it] as insignificant.” The Supreme Court in Fisher returned the dispute to the lower court, eight months after argument, with little commentary.
Dressed
casually and still wearing a sling due to a serious bicycle accident in April,
Breyer gave a brief history of affirmative action at the Supreme Court, as
background. He touched on Regents of the
University of California v. Bakke (1978), Grutter v. Bollinger (2003), and Fisher.
Bakke and Grutter held, in Breyer’s admitted shorthand, that “you can use
affirmative action, but be careful, don’t go too far.”
When the same
issue reached the Court again in Fisher,
“there was a lot of speculation,” Breyer told the audience. “Would there be a
change? Would [the justices] say no affirmative action? What would the Court
do?” Breyer asked, repeating the questions on many people’s minds.
“I can tell
you what the Court did do,” Breyer continued, with his characteristic verve.
“Seven
members of the Court said Grutter is
the law. So, what do I say? ‘Phew,’” drawing laughter. “I say that’s right; that
was my view. Grutter is the law.”
With each
case, Breyer pointed to numbers. Justice Lewis Powell’s solo concurrence in Bakke became a five-justice majority in Grutter, which became a seven-justice majority
in Fisher.
In other
words, five is better than one, and seven is better than five. Fisher was not meaningless; affirmative
action left the Court stronger this term than it came in.
“So, that’s
why I think it’s an important case,” Breyer concluded. “Sometimes an important
case is simply reaffirming another case, which reaffirmed another case.”
The Court has
already agreed to review affirmative action again in the upcoming term, which
will test Breyer’s optimism. The new case
is about a Michigan constitutional amendment that prohibits preference based on
race or gender in public university admissions decisions.
Breyer acknowledged
an ongoing “war” in the law related to affirmative action, including a close division
among the justices.
Under one
view, Breyer observed, the Fourteenth Amendment’s Equal Protection Clause is colorblind,
meaning no discrimination for or against because of race. Another view, “closer
to my own,” Breyer stated, is that the Amendment was intended to be inclusive,
that is, to include African Americans, who had been slaves, into society.
Breyer discussed
the role of dissents and how they can improve the majority opinion, perhaps an
insight into Fisher. The only thing
the public sees are “failed dissents,” as Breyer put it, the ones that didn’t
persuade.
Breyer
explained that justices sometimes work for months on dissents, only to scrap them
when their persuasive points change the majority. “That is a common
experience,” according to Breyer.
A veiled
reference to Fisher? Maybe, maybe
not. If so, it could partially account for the long delay between argument and
decision in Fisher.
