An inside look at Fisher

October 07, 2014 | By JOSHUA THOMPSON

There’s a new book out on Supreme Court Justice Sotomayor.  I have not read the book, but PLF friend Josh Blackman has the scoop on an interesting story about the Fisher decision in the book. According to Blackman (via Nina Totenberg), the case was primed to be decided along they typical 5-4 split (actually 5-3 in this case because Justice Kagan recused herself), with the Court striking down the discriminatory admissions policy. However, the majority balked after reading Justice Sotomayor’s proposed dissent, and Justice Kennedy rewrote his opinion in order to command the eventual 7-1 majority, with Justice Sotomayor signing on to his majority opinion. Additionally, Justice Sotomayor’s proposed dissent — after some reworking — became her dissent in the Schuette case

If true, this is disappointing. A majority of the Court recognizes that the University of Texas’s admissions policy discriminated against Abigail Fisher in violation of the Equal Protection Clause, but has required her to continue to litigate the case despite the University’s unconstitutional treatment of her. Indeed, the Fisher case is still ongoing, and we will likely have to wait a couple more years before Abigail Fisher has her case resolved.

In contrast, the constitutionality of state bans on race-based decisionmaking is settled. Bans on discrimination throughout the country are solidified, and more states can decide whether to ban racial preferences.

And that proposed dissent that had the Supreme Court justices so worried? Here’s a snippet of what David Bernstein had to say:

In fact, judging from her opinion, the breadth of Justice Sotomayor’s “race matters” concern is not some discernibly logical or empirical theory about for whom “race” or, for that matter, “different appearance from the mainstream” matters. Rather, being a “racial minority” is implicitly defined by an arbitrary combination of artificial census categories, university affirmative action admissions policies, and a sense of which minority groups, broadly construed, are not “making it.” The “making it” factor is itself highly problematic, given that some subgroups of the Asian category, not to mention some whites (as in Appalachia), have much worse socioeconomic indicators than some subgroups of Hispanics.

PLF continues its support of Ms. Fisher — her case is now awaiting a decision on en banc rehearing before the Fifth Circuit. If it goes to the Supreme Court a second time, hopefully the Court does what it was primed to do two years ago.