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The Mau-Mauing of Justice Kennedy

The cowardice of Fisher II suggests that Justice Anthony Kennedy fears another confrontation by the “Wise Latina.”

Justice Anthony Kennedy’s milquetoast 4-3 opinion in Fisher v. University of Texas (Fisher II) has been lambasted from all directions as “a devastating blow to the cause of a color-blind Constitution” (by John Yoo), a “logical pretzel” (by the Wall Street Journal), and a “hedgy, compromise opinion” representing a “pyrrhic victory” for UT that “paves the way for more lawsuits against more universities in the future” (by The Daily Beast).  The most damning criticism, however, was mounted by Justice Samuel Alito, whose blistering 51-page dissenting opinion begins with these words: “Something strange has happened since our prior decision in this case.”  Something strange, indeed. 

The background of Fisher II (summarized here, here, here, and here) is deceptively simple.  When the U.S. Supreme Court granted cert in the first round of Abigail Fisher’s challenge to UT’s race-conscious “holistic” admissions process (Fisher I) in early 2012, many court watchers were hopeful that the Court intended to overrule Grutter v. Bollinger (2003), an inscrutable 5-4 decision written by Justice Sandra O’Connor that upheld the University of Michigan’s use of racial preferences in admissions based on the fanciful notion that race discrimination can be justified if necessary to realize the “educational benefits” of diversity in higher education.  Kennedy, a lifelong opponent of racial preferences, dissented.  When O’Connor retired in 2006 and was replaced by Alito, a critic of affirmative action, it appeared that the Grutter dissenters had the votes to overturn the decision. (Chief Justice William Rehnquist, who also dissented in Grutter, was replaced by the likeminded Chief Justice John Roberts.)  Moreover, UT’s race and ethnic preferences, unlike the policy upheld in Grutter, supplemented a race-neutral admissions process (the so-called Top Ten Percent Law) that already produced a diverse student body at UT.  Conventional wisdom, based on the grant of cert, was that UT’s “policy could be in real danger; the only remaining question is whether the Grutter decision is as well.”

Accordingly, observers were shocked when the Court, in 2013, issued a 7-1 decision in Fisher I (written by Kennedy, Justice Elena Kagan abstaining), that neither invalidated UT’s “holistic” admissions process nor overturned Grutter; instead, the Court simply remanded the case to the Fifth Circuit for reconsideration.  The majority concluded that the Fifth Circuit has failed to apply Grutter correctly, by inappropriately deferring to UT and by not applying the demanding “strict scrutiny” standard to require UT to prove that its consideration of race was “necessary” and “narrowly tailored.”  What had happened?

One theory, based on insider reports at the Court, is that a five-justice majority in Fisher I was prepared “to strike down the UT program and restrict affirmative action nationwide,” according to Joan Biskupic, author of the 2014 book Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice.  Biskupic’s research indicates that Kennedy, writing for the initial 5-3 majority in Fisher I, changed course to placate Justice Sonia Sotomayor, who had circulated a “scathing dissent that led the majority to back down.”  Sotomayor’s proposed dissent, “suffused with the personal experience of her Puerto Rican Bronx background,” denounced “the majority’s attitude toward race and racial policy.  The tone from the nation’s first Latina justice: You haven’t lived it and you don’t get it.”  Biskupic’s account states that “Kennedy wanted to lower the temperature among the justices ….  Kennedy amended his opinion to allow the UT program to stand—temporarily at least—and to return the case to the Fifth Circuit for another review…. Sotomayor filed away her draft dissent, and she and [Justice Stephen] Breyer signed Kennedy’s opinion.”  Thus the calculatedly tame 7-1 opinion.

This could easily be a scene from Tom Wolfe’s classic article, “Mau-Mauing the Flak Catchers,” in which he describes hapless bureaucrats in a San Francisco welfare office being intimidated by savvy race hustlers who cynically exploit the well-meaning functionaries’ white guilt to extract concessions.  As in Wolfe’s farcical vignette, reprinted in his 1970 book Radical Chic & Mau-Mauing the Flak Catchers, the flak catchers’ concessions are pointless because the hustlers never hold up their end of the bargain.  In Sotomayor’s case, she filed her strident dissent anyway, in the later case Schuette v. Coalition to Defend Affirmative Action (2014), in which the Court upheld Michigan’s statewide ban on affirmative action.  So much for “lowering the temperature.”

After the remand in Fisher I, UT presented no new evidence.  The case was re-argued on the existing record.  The Fifth Circuit once again perfunctorily rubber-stamped UT’s race-conscious “holistic” process (this time with a dissenting opinion by Judge Emilio Garza).  UT’s stated rationale for supplementing the Top Ten Percent Law (which grants automatic admission to the top graduates of the state’s high schools, mainly benefiting urban and rural minorities)—that the “educational benefits” of diversity depend on having the right socio-economic mix of minorities—was devoid of support in the record.  UT had done nothing to shore up its vulnerability in Fisher I. Texas’s other major state university system, Texas A&M, does not supplement the Top Ten Percent Law with a race-conscious “holistic” process.  UT insisted that the neutrally-drawn complement of minorities did not comprise the necessary “critical mass” because it did not include affluent minorities from the suburbs.  Judge Garza mocked UT’s position as advocating “diversity within diversity” and called UT’s arguments “subjective, circular, or tautological.” And UT had no explanation for why the enhanced presence of only certain minorities—not including Asians—generated “educational benefits.”  Diversity, it seems, is a “secret sauce” known only to UT admissions officers.

So when the Court granted cert again, in Fisher II, hopes were high that UT’s program would be declared unconstitutional at last.  Other developments subsequent to Fisher I militated against UT.  UT Austin President Bill Powers was forced to resign in a scandal regarding his role in a backdoor admissions system for influential donors and legislators.  An outside investigator, Kroll, Inc., concluded that Powers and his staff had misled an prior internal inquiry by failing to disclose the secret crony system, and thereby “failed to speak with the candor and forthrightness expected of people in their respective positions of trust and leadership.”

And yet, in Fisher II, for the first time in his career on the Court, Kennedy voted in favor of racial preferences, writing an opinion that left Grutter (from which he dissented) in place and which retreated from the lofty commands of Fisher I (which was the watered down compromise he made in exchange for Sotomayor abandoning her intemperate dissent—which she later issued anyway).  And all the unpleasantness about the Kroll report and the admissions scandal at UT?  Ignored.  Kennedy’s opinion is an embarrassing mess.  The Wall Street Journal termed it “tortured,” and accused Kennedy of “gutting his own precedent” and lacking “the courage of his self-stated convictions.”  Ouch.  Professor John Yoo called Kennedy’s appointment to the Court Ronald Reagan’s “longest-lasting mistake as president.”

Alito’s dissent is a merciless (but well-deserved) trip to the wood shed.  Alito exposes the incoherence, flaccid reasoning, oversights, and intellectual dishonesty necessary to uphold, under the “strict scrutiny” test, the same arguments, and the same record, that the Court rejected three years ago.  The only plausible explanation for Kennedy’s change of position is that he wanted to avoid another confrontation with Sotomayor.  Like the cowardly bureaucrats lampooned by Tom Wolfe, Kennedy shrank beneath the mau-mauing of Sotomayor.  Without courage, judges—including Republican appointees—often fall “sway to the siren song of the academy and the media.”

Kennedy may be grooming himself for the history books, thinking that his newly-found progressive views will burnish his judicial legacy.  If so, he is sadly mistaken.  His nearest role model, Justice Harry Blackmun, achieved eternal obloquy for his authorship of Roe v. Wade (1973).  Kennedy will be forever remembered for Obergefell, Fisher II, and the “mystery passage” in Planned Parenthood v. Casey, an activist trifecta.  In the dubious sweepstakes for “Most Disappointing Republican Appointee to the Supreme Court,” Kennedy is rapidly closing in on Justice William Brennan.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on June 28, 2016 at 08:44:46 am

If it was Sotomayor's dissent in Schuette v. Coalition to Defend Affirmative Action that cowed Kennedy, then he is suffering from a serious mental malfunction. I have read closely that dissent, and tried in vain to find any evidence of coherent thought. Sotomayor's dissent in Schuette is the single most illogical, incoherent rant in the history of Supreme Court opinions - though Kennedy's own opinion in Obergefell is complete balderdash, it still has a few rare moments of lucidity - something completely absent from Sotomayor's Schuette dissent.

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Image of Daniel Artz
Daniel Artz
on June 28, 2016 at 09:10:26 am

Not a serious mental malfunction, just a lack of courage. The power of "mau-mauing" lies not in rhetorical force, but in intimidation--and white guilt. Tom Wolfe nailed it 46 years ago.

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Image of Mark Pulliam
Mark Pulliam
on June 28, 2016 at 10:03:01 am

Why is anyone surprised by this.

In an age which has seen a reversion back to hieroglyphic communications (emojis), is it any wonder that emotion is now conflated with wisdom.
Let us simply characterize the Wise Latina's jurisprudence for what it is: Emoji Jurisprudence.

BTW: SOMETIMES, you can tell a book by it's cover. Sotomayor looks like an angry *victim* poised to take on all windmills.

I wonder what *book covers" we will be introduced to when Madame Defarge, Oops, I mean Madam Hillary assumes power?

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Image of gabe
gabe
on June 28, 2016 at 11:53:18 am

To lump Brennan together with Kennedy as a "disappointing" Republican SCOTUS appointee is unfair to Brennan. Brennan was a leftwing Democrat for his entire career before Eisenhower foolishly put him on the Court. No one had any right to be surprised or disappointed that he continued to push the law to the left as a Supreme Court justice. Eisenhower's appointment of Brennan, for short-sighted political reasons is a testimony to the cluelessness of midcentury American "conservatism."

I have read that Reagan's advisors were well aware that Kennedy was not a reliable conservative. Kennedy was appointed when the Bork nomination fell through because he was the only other candidate who had been completely vetted. Apparently, Reagan's brilliant staff thought they could box Reagan into appointing Bork by giving him only one far less desirable option, and the plan backfired.

It's hard to say that Kennedy is worse than numerous other Republican Supreme Court appointments - Burger, Blackmun, Powell, Stevens, O'Connor, Souter. Without these disastrous own-goal appointments, constitutional law would be entirely different today.

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Image of djf
djf
on June 28, 2016 at 17:57:11 pm

Painful to read Kennedy's opinions - far from applying fixed principles of law to the case at hand, they are a tangle of sentimental mish mash, all random pieces fractured and incapable of being put back into place. Thus, you never know what he's gonna do at any time. Dangerous judge - dangerous to the rule of law, to the values of separation of powers, states' rights, the rule of law, and to our very Republic..

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Image of Joe Jr.
Joe Jr.
on June 28, 2016 at 18:41:28 pm

When the Constitution was drafted one of the issues that came up was the question of treason. After a little debate the treason was defined and limited to require the testimony of two witnesses for a specific event.

The reason this came up was that treason laws were know to be abused by manipulative officials. The definitions of treason could be stretched until an innocent antagonist could be accused, tried and found guilty of treason. The Framers were quite aware that political manipulators sometimes used the flexibility of the definition to remove inconvenient opponents. The Constitution was designed to prevent that from happening. It was an important enough problem to include in the Constitution.

Meet the new "treason."

When the rule of law accepted the concept of rights of racial balancing as a central foundation of government, the new treason became crimes against race. The definition of the new treason is stretched regularly for the purposes of political manipulation.

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Image of Scott Amorian
Scott Amorian
on June 28, 2016 at 20:14:30 pm

Scott:

Luvv'd it!

However, I would broaden it just a wee bit:

Anything that does not conform to the Proggies world view is treasonous. To believe that government ought to regulate every aspect of our lives and thought, unless conforming to Proggie principles is treasonous. Nobody.really believes that, now do they!

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Image of gabe
gabe
on June 28, 2016 at 22:30:59 pm

You are forgetting about Doug Ginsburg.

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Image of Solomon L. Wisenberg
Solomon L. Wisenberg
on June 29, 2016 at 11:38:56 am

[…] itself that would explain this unexpected change of heart. It is, as Mark Pulliam describes it in a recent post at liberylawsite, “an embarrassing mess.” In a long and withering dissent, Justice Alito smashes […]

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Image of A Novel Explanation for Kennedy’s Change of Heart | The Locker Room
A Novel Explanation for Kennedy’s Change of Heart | The Locker Room
on June 29, 2016 at 11:47:11 am

What Mark Pulliam discloses:

The judges of the SCOTUS can be, and some have become, instrumentalities in the perversion of our legal system into a means for attaining (and advancing) particular economic, social and political objectives; rather than adjudicating the obligations and the modes of their performances amongst the members of our society.

Given the broad public support, indeed, demand, for that perversion of our legal system, it is difficult to identify singular motivational aspects to judicial conduct. Some of it is reactionary or responsive; some may be driven by participatory (waging influence) inclinations. We can expect no more of those judges than we expect from the uses and perversions of our legal system.

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Image of R Richard Schweitzer
R Richard Schweitzer
on June 29, 2016 at 13:07:49 pm

[…] not winning.  Going back to William Brennan, Harry Blackmun, John Paul Stevens, David Souter, and Anthony Kennedy (and maybe John Roberts, if you, like me, consider the original Obamacare case of NFIB […]

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Image of It’s Time for Congress to Declare War on the Judiciary | The Resurgent
It’s Time for Congress to Declare War on the Judiciary | The Resurgent
on June 29, 2016 at 13:34:57 pm

You're right. It must have been after Ginsburg's nomination was withdrawn that they were left with Kennedy as the only vetted candidate. The conclusion is not changed: this was a massive failure by the Reagan's advisors to have a good back-up in case the Bork nomination failed.

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Image of djf
djf
on June 29, 2016 at 15:43:01 pm

Hindsight is 20-20, but Scalia (who was nominated first and unanimously confirmed) probably would have survived a Democratic Senate. So the decision to wait on Bork was a fateful one.

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Image of Mark Pulliam
Mark Pulliam
on June 29, 2016 at 16:19:41 pm

Justice Kennedy also wrote Montgomery v. Louisiana, holding Miller v. Alabama to be retroactive and declaring that it established a categorical rule, after having said the rule was not categorical in Miller.

That holding, along with Fisher II and others, conform to the views of the bien pensants. That may be a good organizing principle, but it's bad con law.

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Image of Jack Park
Jack Park
on June 29, 2016 at 17:57:38 pm

Did you mean to write that Scalia "probably would NOT have survived a Democratic Senate"? That may be, but they should have had more than just three possible candidates ready to go, two of whom they did not really want. This suggests that the staff was trying to force Reagan's hand.

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Image of djf
djf
on June 29, 2016 at 19:52:55 pm

Judging by his Obergefell opinion, isn't it more likely that Kennedy has lost his mind?

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Image of Chris R
Chris R
on June 29, 2016 at 20:13:43 pm

When Scalia was unanimously confirmed in September 1986, the Senate was Republican. Dems regained control in the 1986 elections, so Bork faced tougher odds. Had Bork been nominated first, and then Scalia, both would likely have been confirmed, although that is easy to see in hindsight.

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Image of Mark Pulliam
Mark Pulliam
on June 30, 2016 at 10:57:31 am

[…] The mau-mauing of Justice Kennedy (Online Library of Law and Liberty blog) […]

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Image of June 30, 2016 – atctestgraphic
June 30, 2016 – atctestgraphic
on April 17, 2017 at 15:52:55 pm

[…] record as the university’s 29th president? At great expense, he has successfully defended UT’s controversial use of racial preferences in admissions before the U.S. Supreme Court, a practice he inherited from Powers. Fenves supports […]

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Image of Republican Complacence in the Face of Public University Radicalization - American Greatness
Republican Complacence in the Face of Public University Radicalization - American Greatness
on May 03, 2018 at 04:45:37 am

[…] and inclusion.” (This is in addition to race-based preferences in admissions that UT has fought hard to […]

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Image of Who Runs the Legal Academy? by Mark Pulliam | RUTHFULLY YOURS
Who Runs the Legal Academy? by Mark Pulliam | RUTHFULLY YOURS
on May 15, 2018 at 05:48:24 am

[…] historical statuary (including one commemorating a former Texas governor, James Stephen Hogg); an expensive legal battle to defend the school’s use of racial preferences in admissions; the expansion of a highly paid […]

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Image of Hard Left at UT Having fought hard for racial preferences in admissions, the University of Texas now seeks to expand faculty diversity. Mark Pulliam | RUTHFULLY YOURS
Hard Left at UT Having fought hard for racial preferences in admissions, the University of Texas now seeks to expand faculty diversity. Mark Pulliam | RUTHFULLY YOURS
on May 23, 2019 at 07:43:41 am

[…] muddled decisions—beginning with Bakke in 1978, continuing with Grutter (2003) and most recently Fisher (2016)—has prohibited public universities from engaging in explicit racial […]

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Image of Redlining in Reverse
Redlining in Reverse

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.