Responding to the Supreme Court’s decision in Fisher v. University of Texas, Professor John Yoo writes, “Ronald Reagan made his longest-lasting mistake as president in appointing Justice Anthony Kennedy to the Supreme Court.” I would like to submit for the record the following passage from Kennedy’s opinion, for your reflection:
The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.
The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.
The judgment of the Court of Appeals is affirmed.
The biggest problem with these “feels like” balancing tests is that they make it impossible for anyone to know what the hell the law is. Kennedy basically admits here that, on the same facts, he might rule differently next year, depending on whether the university has observed its apparently constitutional obligation to “engage in constant deliberation and continued reflection.” This opinion is just a New Age declaration of arbitrary power to decide these cases however the justices feel like deciding them on any given day, without the least obligation to decide similar cases consistently. I am going to make it a point to sit in on a constitutional-law class where a progressive professor tries to explain the ruling in this case, to see what he or she can divine from this little collection of cheap tea leaves.