Should conservatives be disappointed in the Supreme Court ruling today in Fisher v. University of Texas? Some on the right are probably taking heart that the Court, by a 7-1 margin, reversed the Fifth Circuit, which had upheld UT’s explicit use of racial preferences in its undergraduate admissions process. Abigail Fisher, whose test scores and grades would likely have gained her admission if not for UT’s consideration of race, will get her chance to go to trial. That will prove extremely embarrassing for the university faculty and administrators who administer these immoral programs.
Put me down, however, on the pessimistic side of the ledger. I think this is a setback for the cause of returning the nation to the color-blind principles of the Declaration of Independence and the Constitution. A majority of the Court, it seems to me, continues to agree that “diversity” in higher education is a compelling government interest that survives the strictest of scrutiny by the judiciary. Until Grutter v. Bollinger, the 2003 case that blessed affirmative action in university admissions, the Court had found that the only use of race that could qualify as a compelling government interest was in wartime — and that was in the Japanese internment case, Korematsu. To compare diversity in higher education to the nation’s ability to defend itself while at war showed how mistaken the Court was in Grutter.
In Fisher, the Court declined to reconsider this terrible mistake. Instead, it returned the case to the 5th Circuit for further proceedings because it wants the lower court to seriously examine whether any individual affirmative action program was “narrowly tailored” to achieve the goal of racial diversity in higher education. This left the basic law of Grutter unchanged and only ensures that challenges to affirmative action will focus on the ways that schools measure and count an applicant’s skin color — not on the unconstitutionality of using skin color at all. I’m sure that is why liberals such as Justices Stephen Breyer and Sonia Sotomayor joined the majority opinion. They managed to head off a case that should have resulted in the overruling of Grutter. In its place, they merely required the lower courts to be more diligent in examining the myriad ways that universities use race in their application processes.
Liberal judges know that they have university administrators on their side. There is no value that commands more reverence from faculty than affirmative action. Universities will sacrifice almost anything to protect and preserve racial preferences, even if it means lowering academic quality across the board or distorting the scholar’s mission to pursue truth. Given how administrators and faculty will rewrite and bend the rules to maintain racial preferences, today’s Court decision will only trigger a painful ground war where both sides will fight over the mechanics of counting skin color in university admissions.
Am I being too pessimistic? Is this another case, like the challenge to Obamacare last year, where conservatives and libertarians have erred in putting all their eggs in the judicial basket? Once again, the courts are not going to save us. Only winning elections can.
John Yoo is professor of law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. From 2001 to 2003, he served as deputy assistant attorney general in the Office of Legal Counsel in the Justice Department of President George W. Bush. The views expressed are solely his own. This article was published in partnership with Ricochet, a site that provides right-of-center podcasts, content and conversation for conservatives and libertarians.