Two Thoughts on Fisher v. University of Texas
My sense is that Fisher v. University of Texas, the affirmative action case argued to the Supreme Court today, poses a fundamental challenge to judicial conservatives that may not be fully appreciated. As commentaries indicate (e.g., here and here; SCOTUSBlog commentary here), much of today's oral argument sounded like a policy debate -- what are the goals UT is pursuing and is its version of affirmative action a good way of getting there? That seems problematic in two related respects. First, it's far afield from the original meaning of the Fourteenth Amendment -- which might well bar Texas' affirmative action program, but surely not on the basis of the sort of policy minutiae being discussed today. Second, in similar vein, it's far removed from the idea of judicial restraint. We've had some sharp debates on this blog on the meaning of judicial restraint, but at minimum judicial restraint would seem to mean that judges should not overturn decisions of political actors other than on the basis of a clear constitutional command. And while it's obvious, it's worth repeating: judicial ruling against affirmative action is a judicial intervention into the democratic process -- a process fully capable of rejecting affirmative action if the electorate desires, as events in California and elsewhere have shown. Again, I'm not saying that a case against affirmative action consistent with originalism and (some forms of) judicial restraint can't be built, but today's argument did not represent much progress in that direction.