In October, this Supreme Court term looked like it could be a disaster. The Court had taken review of cases involving multiple hot-button issues that typically divide conservatives and liberals, and, as has been the case since 1972, the Court’s conservatives outnumbered its liberals. Abortion, affirmative action, public-union dues, President Obama’s immigration initiative, voting rights, and the Affordable Care Act (again) were all on the chopping block. Many observers predicted this would be the year the Roberts Court showed its full conservative strength, and the only question that remained was how devastating the results would be.
Then Justice Antonin Scalia died, and everything changed. There was no longer a conservative majority; instead, the Court was evenly divided, 4 – 4, between conservative and liberal justices. Lawyers preparing for their Court appearances changed their arguments; pundits adjusted their predictions. That a single justice’s absence could make such a difference revealed how small the margin of conservative advantage had been. Would the term now end in deadlock? A tie is a highly unsatisfactory way to resolve a Supreme Court case: It leaves the lower court’s decision standing, but it makes no law and offers no reasoning.
The Court did deadlock in some cases. A 4 – 4 tie left standing a trial-court injunction blocking President Obama’s immigration initiative, denying relief to several million undocumented immigrants without even offering a reason. An earlier 4 – 4 tie, by contrast, saved public-union dues from a likely defeat. But for the most part, the Court avoided ties. For example, in a case asking whether Catholic nonprofits could invoke religious objections in refusing to provide insurance coverage under the ACA for their employees’ birth control, the Court sidestepped a deadlock by sending the case back to the lower courts to see if the matter could be settled.
In the term’s two most closely watched cases, however, the Court not only did not tie, but surprised virtually all of the experts. Both times, it was Justice Anthony Kennedy who delivered the surprise. In Fisher v. University of Texas, he sided with his liberal colleagues Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor to uphold an affirmative-action plan (Justice Elena Kagan was recused, so only seven justices heard the appeal). It’s only the second time in the Court’s history that it has upheld a university affirmative-action plan, and it’s also the first time that Kennedy has voted in favor of any race-based government action.
Kennedy and his fellow conservatives had previously adhered to a formalistic theory of equal protection that requires “color-blindness” and treats as equally suspect the consideration of race to benefit or to harm members of minority groups. But in Fisher, Kennedy ruled that race could be considered to increase the admission of disadvantaged minorities. While the other conservative justices objected that Texas’s goal of diversity was too open-ended, Kennedy recognized that diversity’s many educational benefits cannot be reduced to precise numbers. He concluded that using affirmative action to increase diversity could survive strict judicial scrutiny if the university found that race-neutral alternatives were insufficient, and if each applicant’s file was reviewed holistically, with race playing only a modest role. Texas had achieved some racial diversity through a race-neutral plan that offered automatic admission to any Texas student in the top 10 percent of his or her high-school class, but Kennedy agreed with the university that class rank alone doesn’t allow a school to capture all of the benefits of true diversity.