Court Reins in Affirmative Action

On Monday, the Supreme Court raised the bar on what government must prove in programs that give preferences based on race, in a surprising 7-1 decision in Fisher v. University of Texas.

Beginning in 1978, the Supreme Court has held the use of racial preferences does not violate the Fourteenth Amendment to the Constitution so long as government only considers race as a factor and falls short of imposing some sort of quota or other explicit racial balancing plan. 

Today in an opinion by Justice Anthony Kennedy, the Court held that the lower courts afford far too much deference to the university regarding whether their affirmative action program achieves a truly compelling public interest and sent the case back to the appeals court to apply a more rigorous and skeptical standard of review. 

Justice Ruth Bader Ginsburg dissented. Although one fellow liberal–Elena Kagan–was recused from the case, the other two liberals–Justices Stephen Breyer and Sonia Sotomayor–joined Kennedy’s opinion, in a move likely to disappoint many on the Left. 

A full analysis will be posted later today.