Marc Ambinder thinks that the era of affirmative action may be coming to an end.
[Justice Anthony Kennedy] endorses the idea that affirmative action can be used to achieve a diverse student body, so long as race is considered as one part among many others, and so long as applicants are considered individually. It is hard to imagine him not finding fault with the racially conscious 15 percent admissions process. For Kennedy, race-conscious policies are permissible (barely) if (and only if) diversity cannot be achieved any other way. Plainly, the University of Texas has found a way to achieve some measure of diversity without affirmative action before it takes race into account.
Perhaps Kennedy will try to salvage affirmative action, but it is hard to see the court’s conservatives allowing him to do so. They have their chance to end it, not mend it. Though John Roberts has said (and told Congress during his confirmation hearings) that he values precedent and wants the court’s decisions to be incremental rather than sweeping, it will be hard to resist the temptation to sweep away racial preferences.
It seems to me that he actually put his finger on why affirmative action won’t be banned wholesale. If Kennedy wants to preserve affirmative action, but can’t justify it in Texas, he can merely write an opinion stating that affirmative action is not permissible where the aims are being met by other means. That would abolish affirmative action in Texas, while continuing to allow sympathetic jurisdictions an opportunity to keep with the policy. To universalize from Texas’ experience, Kennedy must be judicially confident that any state could achieve the manner of diversity through a Top 10% policy like Texas has. This may be true, but it’s far from certain for a whole host of reasons.
It seems to me that Kennedy remains relatively sympathetic to affirmative action. If I’m wrong on that, then maybe it is dead in the water. But if I’m right, he can either uphold it in Texas (by declaring that the existing racial diversity is insufficient) or uphold it everywhere else (with the above argument).