AFFIRMATIVE ACTION, JUSTICE KENNEDY, AND THE VIRTUES OF THE MIDDLE GROUND[dagger]
Rostron, Allen, Northwestern University Law Review
ABSTRACT-When the Supreme Court heard arguments in October about the constitutionality of affirmative action policies at the University of Texas, attention focused once again on Justice Anthony Kennedy. With the rest of the Court split between a bloc of four reliably liberal jurists and a cadre of four conservatives, the spotlight regularly falls on Justice Kennedy, the swing voter that each side in every closely divided and ideologically charged case desperately hopes to attract. Critics condemn Justice Kennedy for having an unprincipled, capricious, and self-aggrandizing style of decisionmaking. Though he is often decisive in the sense of casting the crucial vote that determines a case's outcome, his opinions can be maddeningly indecisive in the sense of failing to establish clear rules of law. Yet in Fisher v. University of Texas, Justice Kennedy's irresolute nature may prove to be a blessing. By taking a middle-ground position that significantly sharpens judicial scrutiny of affirmative action programs but does not absolutely bar them, Justice Kennedy can finesse the issue in a way that accommodates the American public's conflicted feelings about racial preferences, but simultaneously forces everyone to start thinking more seriously about how racial components of affirmative action can be phased out in a manner that will minimize disruption and bitterness.
I. A PATTERN OF SPLITTING THE DIFFERENCE
If Justice Kennedy winds up casting the deciding vote in Fisher v. University of Texas at Austin,1 it will not be the first time that a middle-ground position taken by a single Justice is decisive in a key Supreme Court case about affirmative action. When the Court first tackled the issue in Regents of the University of California v. Bakke,2 Lewis Powell was the Justice who held sway. In that case, Allan Bakke, a white male, claimed that the medical school at the University of California at Davis impermissibly discriminated against him by reserving 16 out of 100 seats in each entering class for applicants from disadvantaged minority groups.3 Four members of the Supreme Court thought the medical school's admissions policy violated federal law,4 while four others saw no legal flaw in the school's approach.5 That leftJustice Powell to break the tie. While declaring that the medical school violated the Equal Protection Clause by fixing a rigid quota for minority students, Justice Powell explained that he would approve a policy under which an applicant's contribution to the school's racial or ethnic diversity would be merely a "plus" factor in evaluating the applicant's admission file.6
A quarter of a century later, the Supreme Court returned to the question of affirmative action in a pair of cases involving the University of Michigan.7 At Michigan's undergraduate College of Literature, Science, and the Arts, the admissions formula specified that an applicant from an underrepresented minority group would receive a 20-point boost toward the 100 points needed to guarantee admission.8 Michigan Law School, on the other hand, used no fixed formula or point system, but took the race of applicants into account to ensure the enrollment of a "critical mass" of minority students.9 While most Supreme Court Justices saw no constitutionally significant difference between the college's point system and the law school's non-numeric method, Justices Sandra Day O'Connor and Stephen Breyer distinguished the two-casting the pivotal votes to strike down the undergraduate college's points-based policy but to uphold the law school's more flexible and vague approach. Justice O'Connor added an unusual twist to her opinion by noting that it had been twenty-five years since Justice Powell's landmark opinion in Bakke, and forecasting "that 25 years from now, the use of racial preferences will no longer be necessary" to ensure sufficient racial diversity in public universities.10 The Michigan cases thus represented "the apogee of split-the-difference pragmatism" rather than a clear victory for either side of the affirmative action debate. …