Stereotyping Wins in the SCOTUS

In the affirmative-action case decided on Thursday by the U.S. Supreme Court, Fisher v. University of Texas at Austin, Justice Anthony Kennedy cast the decisive vote that saved UT’s race-conscious admissions program from the constitutional scrap heap. It was a stunning development, because during his 27 years on the Court, Justice Kennedy has been a vocal skeptic, if not opponent, of race-based preferences. In a 2003 dissent, he memorably wrote that “preferment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality.” At that time he excoriated the majority for “refus{ing} to be faithful to the settled principle of strict review designed to reflect these concerns.” Yesterday he penned a majority opinion upon which he might have heaped scorn thirteen years ago. Not since Chief Justice Roberts cast the decisive fifth vote to save Obamacare has a member of the high court so surprised observers with an apparent change of convictions. Why Kennedy changed his mind is anyone’s guess. Far more important are the decision’s constitutional implications.

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Stereotyping Wins in the SCOTUS

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