Justice Kennedy’s Startling Shift on Affirmative Action

By Tony Mauro

In 1989 Anthony Kennedy, then a new justice on the U.S. Supreme Court, wrote in an affirmative-action case, “The moral imperative of racial neutrality is the driving force of the Equal Protection Clause.”

In 2003, Kennedy drew from the 1978 Bakke decision in criticizing an affirmative-action program at the University of Michigan. “Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination,” he said.

Justice Samuel Alito Jr. pointedly reminded everyone of those past statements on Thursday, no doubt to highlight Kennedy’s remarkable change of direction in his opinions on affirmative action.

Kennedy, who has voted against every race-based affirmative action program during his tenure on the court, shifted gears Thursday, writing the majority opinion upholding the University of Texas’ affirmative-action policy for undergraduate admissions. He found that the use of race as a factor in university admissions could withstand strict scrutiny.

“Something strange has happened since our prior decision in this case,” Alito wrote in a 51-page dissent from Kennedy’s surprise majority ruling in the second Fisher v. University of Texas case. As soon as the ruling went up online Thursday, commentators began speculating about what happened to Kennedy, who turns 80 next month.

His shift could be as simple as a desire to end a long-running dispute, after years in which university officials were at a loss to determine what weight, if any, they could give to race in admissions.

“Under the circumstances of this case … a remand would do nothing more than prolong a suit that has already persisted for eight years and cost the parties on both sides significant resources,” Kennedy wrote.

But others thought Kennedy was displaying one of his trademark characteristics as a justice—a brooding re-examination of old doctrines that has moved him to the left several times before. Kennedy has been called “agonizer-in-chief,” and the title of a 2009 biography of the California-born justice is “The Tie Goes To Freedom.”

He is also cognizant of his role as the “swing vote” on the court, said David Gans, civil rights director of the liberal Constitutional Accountability Center. Kennedy may not have wanted to be the justice who tipped the court away from perceived solutions to the court’s long history of racial discrimination, Gans said. “He has shown himself to be much more cognizant of the role race plays in this country.”

Cornell Law School professor Michael Dorf, a former Kennedy law clerk, said that in spite of the justice’s votes against affirmative action, his rhetoric was not that rigid, and he accepted diversity as a valid aspiration for universities. “His Fisher II opinion puts his vote where his rhetoric was all along,” Dorf said.

But others saw greater significance in Kennedy’s opinion. One professor theorized Kennedy moved strategically to anticipate a liberal shift on the high court caused by Justice Antonin Scalia’s death in February and the possibility that his seat will be filled by a moderate or liberal nominee.

“If he wants to maintain his prominent role as the swing justice, he will have to move to the left, too,” said University of California at Los Angeles School of Law constitutional law professor Adam Winkler.

Court-watcher Lisa McElroy, a professor at Drexel University Thomas R. Kline School of Law, also said, “I wonder if he is finding solidarity in the liberal wing, and Scalia isn’t there to keep him in check. Everyone keeps saying that the vacancy gives an opportunity for us to see our first liberal court in decades. I wonder if we already are.”