the supreme court because the conservatives reached out for this case, and they couldn t deliver. professor greenhouse, i m a politics guy. why don t i bring this back to the politics. the supreme court did say they would revisit this issue and look at the legality of ballot initiatives, specifically about affirmative action, whether those could move forward. from the ruling they had today, how do you read the possible following ruling on a ballot initiative moving forward? is that something that a lot of states you could definitely see on the ballot, they would allow in 2014, 2016? right, that s the case coming up for michigan next fall. that s a tough case. obviously, the votes to grant that case came from the same side of the court that voted to grant the texas case. so they ve got it in their sights. it raises a different question. it goes to sort of the validity of the political process. the same kind of issue really that the court dealt with back in the 1990s in the case from
recused kagan were basically arguing that the fifth circuit was wrong to accept the assertion by the school that its admissions process uses race in a permissible way. kennedy wrote, in fact, that the court needed to give a closer analysis to how the practice works in process. that said, there is a mountain of evidence suggesting affirmative action in the admissions progress actually disadvantages the minority applica applicant. so is kennedy suggesting that s the kind of evidence the fifth circuit needs to assess at a greater amount? i actually think all he s suggesting is that we got into this case improminently and need a face-saving way out. so we ve got to string a bunch of words together that looks like we re making law. i actually strongly think they aren t. i think this really counts as a very substantial liberal win at
that was the law yesterday. that s still the law today. the court has been skeptical of affirmative action. they upheld it narrowly in 2003. they set a high bar. now, in the michigan case in 0 220 2003, there had been a trial. the facts were established. here in texas, it came up on some rejudgment. there s no trial. the court of appeals of the circuit thought it was applying settling supreme court law. i think it was. it s now up to the circuit to reiterate that, if it chooses to do so. who knows. maybe the case is moot. abigail fisher, the young woman who was recruited to bring this lawsuit has long since graduated from a different college. she has no continuing interest in this matter. it s not a class action. she s the only plaintiff. so the fifth circuit, if i understand federal court procedure, is free to say, thanks for the good advice and this case is finished. it seems to me justice kennedy along with all the other justices except for ginsburg and
affirmative action. on the other hand, he seems to cite some of the arguments we ve heard from conservatives, both on the supreme court and definitely in the conservative bar, that say any racial classification really is suspect and should probably go away as the country evolves. do you think he s edging closer to that criticism and could that come up in the voting rights cases as well? oh, well, the voting rights cases, yes, could be a complete disaster from the civil rights point of view. to take a step back on affirmative action, the court has labored on this case for eight months and brought forth a mouse. i don t think the law has changed at all. that s really the takeaway from this. strict scrutiny has two parts to it. the government entity that s being sued has to show they had a compelling state interest for taking race into account. and that the program by which they ve done that is the most narrowly tailored possible to achieve that interest. i mean, that s the law.
case, a public university, to show that it was okay to use race as a factor in admissions. but in fact, by emphasizing that a school has to show there s no reasonable, workable, race-neutral alternative, the court really is changing the law a little. it s setting the bar it s setting a higher standard for colleges to meet when they get sued over their affirmative action programs. it s very possible that some schools won t be able to meet the standard. right, pete. sometimes it seems like strict scrutiny gets stricter and stricter. we know you ll be back with us tomorrow. thanks again. you bet. all right. next up, we want to bring in linda greenhouse, from yale law school. she covered the supreme court for 30 years for the new york times. it s an honor to have you here. it s my pleasure. let s talk more about what line justice kennedy was walking in this opinion. as we just said, on the one hand, he s got some of the less conservative members of the court with him sendin