Strategically Withholding Dissent

This post examines Justice Sotomayor’s calculus in determining when to issue a fiery dissent invoking racial principles and argues that she should have left a few bullets in the gun in Schuette v. BAMN.

On Wednesday, the Fifth Circuit Court of Appeals declined to rehear Fisher v. Texas en banc.  Fisher was the Court’s latest foray into the question of whether the Constitution permits race-conscious admissions programs, and the Court largely ducked that central question in June 2013, holding instead that the Fifth Circuit had improperly failed to apply strict scrutiny to the program when it took the University of Texas at its word that race-conscious programs were necessary.  The Court remanded the case to the Fifth Circuit for evaluation under the proper standard.  The Fifth Circuit (in a divided panel) held the Texas plan constitutional, and the full Fifth has now declined to review that holding.

So, it seems like the Texas program is once more going upstairs for review.  Though Justice Kennedy and Chief Justice Roberts sometimes swing on other matters, they are largely lockstep conservative on racial issues.  There are at least four votes to grant certiorari.  The question, then, is what happens when Fisher makes its second appearance at the Court.

One of the biggest scoops in Joan Biskupic’s new book on Justice Sotomayor is a behind-the-scenes account of her apparently masterful dissent in the first Fisher.  There were originally five votes to strike the program (and to sub silento overrule Grutter v. Bollinger).  Justice Sotomayor circulated a fiery dissent that scared off Justice Kennedy, who accurately realized that a dissent on this issue from someone of Justice Sotomayor’s race and biography might be devastating to the Court’s credibility (Sotomayor grew up in poverty and attended Princeton and Yale Law with the help of race-conscious admissions).  The Court therefore punted the ball, essentially, by holding that the standard of review had been inadequate and held off the fireworks for another day.  For a summary, see Nina Totenberg’s coverage.  (

That day is here.  And the liberal coalition now arrives without their biggest trump card, because that card was played a hand too early.  Last term, the Court decided Schuette v. BAMN, which examined whether the voters of Michigan could outlaw racial considerations in college admissions.  Justice Kagan recused herself, and the Court found 6-2 that the people of Michigan had acted permissibly.  Justice Sotomayor issued a fiery dissent, pushing directly back at the heart of Chief Justice Roberts’ famous pronouncement that “the best way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  Justice Sotomayor instead argued that “race matters” and noted that “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”  The opinion talked of the day-to-day realities of living in America as a racial minority, of the “most crippling of thoughts: I do not belong here.” Her dissent was so blistering that it drew a rare public rebuke from the Chief in the form of a two-page concurrence.

But something about the Schuette dissent, rhetorically excellent as it was, felt a bit ‘off.’  Josh Blackman noted the dissent did not read as a rebuke to a relatively narrow majority that focused mostly on the inapplicability of the political restructuring doctrine (which isn’t relevant to this post).  Rather, it was the dissent that Sotomayor probably wanted to issue in Fisher, a full-throated howl against the Court’s blindness to the pernicious effects of racial discrimination.  This was Justice Sotomayor’s race dissent–any other will feel duplicative, just as Justice Thomas’s concurrence in Fisher (arguing that affirmative action programs actually harm racial minorities) was a hollow echo of his masterful dissent in Grutter (arguing the same).

So now, Fisher will likely be granted, and Fisher will likely be decided (by a 5-4 vote) in favor of young Abigail Fisher.  Grutter likely will be, at the least, gutted.  And the liberal bloc of the Court has given away the one trump card it really had in this arena–a vicious dissent from an affirmative action success story.  The entire exchange reminds me of the Cold War’s nuclear brinksmanship, in a way–neither the US nor the USSR wanted to launch missiles, but they knew that once one nation launched, the other had every incentive to fire a full salvo.  They participated in third-world proxy wars, testing each others’ limits, ever-cognizant that as a matter of strategy, those proxies couldn’t induce them to fire the real missiles first.  To me, Schuette was a proxy war.  It could have been decided on narrower grounds, and indeed, Justice Kennedy did so.  He held his missiles in reserve.  The Schuette plurality was the legal equivalent of the Cambodian air war–devastating, unfortunate, but limited.  Justice Sotomayor responded by going to DEFCON 1 and firing every arrow in her quiver. In so doing, she preemptively deployed her biggest threat.  The five conservatives now have little reason not to return the favor.

Strategically Withholding Dissent

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