Bakke to the Future: Affirmative Action After Fisher

On June 23, 2016, the Supreme Court announced its much-anticipated decision in Fisher v. University of Texas at Austin, allowing affirmative action in college admissions to continue. No single feature of Fisher surprised court watchers more than its author, Justice Anthony Kennedy. As Richard Primus wrote in the New York Times: “[T]he most deceptive thing about it is its first words: ‘Justice Kennedy delivered the opinion of the court.’”No wonder. Until Fisher, Justice Kennedy had never voted to uphold race- conscious affirmative action. In his 2003 dissent in Grutter v. Bollinger, he derided the majority for accepting the University of Michigan Law School’s use of the term “critical mass” to justify race-based affirmative action in admissions. No one would have predicted then that he would go on to deliver an opinion upholding affirmative action that invokes Grutter no less than a dozen times. How did Justice Kennedy go from affirmative action dissenter to defender?Bakke is the key to understanding Justice Kennedy’s supposed reversal in Fisher. Commentators have missed this point, likely because Justice Kennedy’s Fisher opinion does not directly cite Bakke even once. But Justice Kennedy’s Grutter dissent adhered to Justice Powell’s opinion in the 1978 decision Regents of the University of California v. Bakke. In Bakke, Justice Powell allowed limited use of racial preferences in admissions decisions in the pursuit of a diverse student body so long as it satisfied strict scrutiny. “The opinion by Justice Powell, in my view, states the correct rule for resolving this case,” Kennedy wrote.Justice Kennedy admired Justice Powell’s rule in Bakke yet detested its application in Grutter. He cautioned that Grutter diverged from Bakke in ways that would “perpetuate the hostilities that proper consideration of race is designed to avoid.” Fisher presented him with an opportunity to reset the shape and trajectory of affirmative action in line with Bakke.This Essay demonstrates that we cannot understand the ruling in Fisher without looking at Bakke. Part I surveys the Bakke-Grutter-Fisher line of cases to explain how Grutter diverged from Bakke and why this bothered Justice Kennedy. Part II demonstrates how Fisher aims to preserve an understanding of affirmative action that is informed by Bakke and untainted by Grutter. Not only does Fisher describe affirmative action programs and precedent in ways that maintain fidelity to Bakke, but it also disregards aspects of Grutter that diverged from Bakke, including the use of critical mass as the measure of diversity. Part III identifies the concerns of social cohesion animating Justice Kennedy’s return to Bakke and traces the evolution of those concerns since Bakke. While Bakke’s concern for social cohesion focused on resentment among whites likely to arise from any use of racial preferences, Fisher is not limited in this way. Part IV concludes that universities interested in enrolling a diverse student body would do well to read Justice Powell’s opinion in Bakke, reconsider the use of critical mass to justify race-based affirmative action, and recognize how concerns of social cohesion shape the form of constitutionally permissible affirmative action.

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