Yesterday, Justice Scalia's controversial question about mismatch theory at the Fisher v. UT oral argument grabbed a number of headlines; I did my best to respond in this FedSocBlog post. But the argument also raised a number of bigger picture questions: what could be learned from it about how the justices are likely to rule in this case? And what does that mean for the future of affirmative action generally?

For all but two of the justices, the tea leaves are easy to read. Scalia, Alito, and Roberts appeared sympathetic to the plaintiff's position: Justice Thomas stayed characteristically silent, but his opinions in past race preference cases leave little room for doubt about where he would come down in this one. Sotomayor and Ginsburg likewise seemed strongly inclined to rule in favor of UT, a position again consistent with positions they have taken in prior cases. Justice Kagan is recused from the case, presumably because of work she did on it while a government lawyer. 

That leaves Kennedy and Breyer. Both expressed some interest in whether the case ought to be remanded to the district court for more fact-finding, although Kennedy appeared to abandon interest in the idea by the end of the argument. 

In an earlier post for FedSoc Blog, I wrote that critics of race preferences have cause for modest optimism about Fisher II. I gave relatively little attention to the possibility of yet another remand to a lower court. Given that Kennedy is the key vote in this case and seemed ultimately unpersuaded, I still think a remand is unlikely. I maintain that an opinion which would substantially weaken affirmative action without actually banning it directly is more likely. Justice Breyer's question about the Court killing affirmative action by a "death by a thousand cuts" suggests that he too perceives that his fellow justices as likely to do just that.

Either scenario would essentially heighten the contradictions of Grutter v. Bollinger, the landmark 2003 affirmative action case (please forgive the incongruity of quoting Marx on the FedSoc blog) and thus hasten its demise. To see why, it's necessary to understand that the path that Justice Sandra Day O'Connor took in her majority opinion was surprising. If you run a Westlaw search for law review articles written in the 1990s and early 2000s  about why affirmative action is constitutional, you won't see many with reasoning resembling that of Grutter, which kept the tough-minded requirement of strict scrutiny in analyzing racial preferences, but also required that courts defer to a university's educational judgment that preferences are necessary to attain student body diversity. Their authors tended to favor simpler approaches.  

The majority opinion in Grutter can thus be read as a pragmatic effort to find a "third way" between either striking down all race-preferential programs or letting nearly all live. The problem is that, whatever its other vices and virtues, pragmatism  shouldn't be counted as one of them. Take the concept of "critical mass." Define what number of minority students qualifies as a "critical mass" too narrowly, and a university has set an unconstitutional quota. But define it too vaguely, and the university's program will be found not to be narrowly tailored to achieve the educational benefits of diversity under Grutter and Fisher I. Likewise, under Grutter,  UT might actually have a better constitutional defense for its use of race if it used race in more cases. Finally, although defenders of affirmative action usually see themselves as helping the underprivileged, UT claimed in Fisher that it needed to use race to ensure that it had enough affluent minority students on campus. It is enough to make one's head spin.

Although O'Connor's intentions of striking a grand bargain on a contentious social issue may have been admirable, it's a bargain that hasn't actually worked very well in practice. Either a second remand to the Fifth Circuit or an opinion that takes a step toward tougher scrutiny of preferences will just further highlight the creaking in its joints. Unlike most Supreme Court opinions, Grutter contains "sunset language" indicating that it ought only to be good law for another 25 years. Perhaps its sunset will come even a little sooner.