Fisher and the Issue of Race-Neutrality

You may also like...

4 Responses

  1. Sam Bagenstos says:

    So one theory is that this is the key to why the decision took so long. Perhaps the original Kennedy opinion invalidated the UT plan on narrow tailoring grounds based on the conclusion that the 10% plan was a race-neutral alternative that achieved the benefits of diversity, RBG wrote a dissent that hit the majority hard on whether the 10% plan was race-neutral, Kennedy felt he needed to respond but had trouble responding, Breyer offered to join an opinion that said good faith isn’t enough for narrow tailoring, and Kennedy went that route (with RBG revising her dissent). That would explain why RBG focused on the what-is-race-neutral issue in her brief dissent, even though Kennedy didn’t. But I’m just making this up, of course. None of the theories I’ve seen (including the one I just articulated) really make a whole heck of a lot of sense as to why the case took so long.

  2. Katie Eyer says:

    Sam, that same thought had occurred to me — her dissent really does read like a response to a different opinion, and it would make some sense of the long delay. But given how short it is, and how unlikely it is that she’s not aware of the stakes, it seemed like the choice to leave that language in must have been intentional. I went back and looked at Gratz, and she does mention this issue there as well, albeit in passing in a footnote, so it seems to be something she’s been dwelling on for some time.

  3. Jon Weinberg says:

    I think Sam’s got the right idea (setting aside a few of the details). One of the hardest questions here is why we *didn’t* see a majority opinion striking down the UT plan on narrow tailoring grounds, which I had thought — before Monday — was the obvious likely result. Given the long delay, there’s a lot of appeal to a theory that AK initially drafted such an opinion but that for whatever reason (including the one Sam suggests) it didn’t write, and that some number of additional Justices joined in connection with narrowing the holding.

  4. Bruce D. says:

    I also have to say Sam has the right idea. There are many theories that I’ve heard about this and none truly make any sense as to why this case took so long.