The name of the game at the Court is five votes. Going into this week, before the school decisions had been handed down, if you could count, you suspected that there were five votes to overrule
Grutter, the U of M law school decision that basically affirmed Justice Powell's opinion in
Bakke and upheld affirmative action programs in higher education. Justice Kennedy, the current "swing" justice, dissented in
Grutter, so, with Alito replacing O'Connor (the author of
Grutter), there were five votes to overrule
Grutter and hold that, essentially, all but the most narrowly remedial affirmative action programs violate the equal protection clause (or its Fifth Amendment analog).
This was a distinct possibility because the lower courts had decided the school cases on the basis of
Grutter. It wouldn't have been a stretch.
On Monday, the BongHits4Jesus and taxpayer standing cases came down, in both of which there was no majority to overrule precedent. So that raised a doubt. But I was still betting that
Grutter was toast.
So I was still surprised Thursday that the five-justice conservative majority went so far out of its way
not to overrule
Grutter. From a constitutional jurisprudence perspective, the school decision handed down this week doesn't really break that much new ground. At most, I would say, the decision strictly limits how far lower courts can go in applying
Grutter.
Grutter doesn't apply to K-12, so if you go there, you risk reversal.
Politically, of course, the decision was a big deal. But the liberal outrage--and isn't it nice to see Justice Breyer become a liberal, after all these years? Now, if he had just felt some of that outrage in
Hamdi, a few years back, but that's another story, for another post--the liberal outrage is aimed at a long string of decisions and developments, even if it doesn't know it. The Court basically started down the road it's on now in 1978, with
Bakke, and in the minority set-aside decisions in the 1980s and 1990s. Even
Grutter justifies only certain affirmative action policies--remember, the U of M's undergraduate admissions program was struck down in the companion case.
From a jurisprudential perspective, then, I don't think that this week's school decision changes that much. So I was actually surprised that folks got so
angry. In fact, given that the Court did not overrule
Grutter, I think that from a jurisprudential perspective, liberals and moderates should feel that a much worse outcome was actually averted.
Politically, though,
the big question going forward is how the outrage over the decision affects the current members of the Court--specifically, Kennedy and the Chief.
Kennedy, we know, cares about his press clippings. But the real question is whether the Chief does. He got such a free pass from the liberal and moderate establishment in the confirmation "battle" based on his charm and "non-threatening" demeanor. But now that he's really come out as an archconservative, how will that affect his standing with the establishment? Especially in terms of race relations, there is an establishment consensus, and the school decision this week attacks that consensus. Since race touches everything in contemporary U.S. society, let's see how that plays out.
The other question that I have is how the school decision affects the relationship b/w the Court and the new Democratic majorities in Congress. It seems to me that folks got so used to the tension b/w conservative Republicans and the Court that we may have forgotten that Democrats might have problems with the judiciary, too. That's one where we'll just have to stay tuned.