The Supreme Court Thursday bid a surprisingly firm farewell to Abigail Fisher. Whatever the next chapter in the saga of affirmative action in higher education admissions, this peculiarly persistent plaintiff will not write it.
Fisher’s campaign against affirmative action—which has lasted nearly a decade and occupied the Court’s docket not once but twice—ended in substantial defeat. Justice Anthony Kennedy wrote for a four-Justice majority in Thursday’s decision, Fisher v. University of Texas at Austin. For the first time in his judicial career, Kennedy gave his approval to a race-based affirmative-action program. And he did so in an opinion that clearly reaffirmed the constitutional rationale for such programs first enunciated by Justice Lewis F. Powell Jr. in the 1978 case of Regents of University of California v. Bakke and reaffirmed by the court majority in the 2003 case of Grutter v. Bollinger.
Thursday’s decision was only 4-3. Justice Elena Kagan, whose office participated in the case when she was Solicitor General, recused herself. Justice Antonin Scalia left little doubt how he felt at oral argument in December (African American students, he suggested, belonged at “lesser schools” than UT). But Scalia died in February, and the case was decided by the seven remaining justices. Kennedy was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Justice Samuel Alito wrote a sharp dissent, joined by Chief Justice John Roberts and Justice Clarence Thomas. Thomas in a one-page dissent reaffirmed his conviction that all affirmative action is unconstitutional.