Affirmative Action, Justice Kennedy, and the Virtues of the Middle Ground

Rostron, Allen | January 1, 2013

When the Supreme Court heard arguments in October about the constitutionality of affirmative action policies at the University of Texas, attention focused once again on Justice Anthony Kennedy. With the rest of the Court split between a bloc of four reliably liberal jurists and a cadre of four conservatives, the spotlight regularly falls on Justice Kennedy, the swing voter that each side in every closely divided and ideologically charged case desperately hopes to attract. Critics condemn Justice Kennedy for having an unprincipled, capricious, and selfaggrandizing style of decisionmaking. Though he is often decisive in the sense of casting the crucial vote that determines a case’s outcome, his opinions can be maddeningly indecisive in the sense of failing to establish clear rules of law. Yet in Fisher v. University of Texas, Justice Kennedy’s irresolute nature may prove to be a blessing. By taking a middle-ground position that significantly sharpens judicial scrutiny of affirmative action programs but does not absolutely bar them, Justice Kennedy can finesse the issue in a way that accommodates the American public’s conflicted feelings about racial preferences, but simultaneously forces everyone to start thinking more seriously about how racial components of affirmative action can be phased out in a manner that will minimize disruption and bitterness.