In his dissent to Fisher v. University of Texas (2016), Justice Alito wrote that the majority’s position was “remarkable—and remarkably wrong.” Indeed, the majority’s holding not only departed from the relevant precedents—including Fisher v. University of Texas (2013)—but also included a manifest contradiction: On one hand, the Court declared that it would subject the university’s admissions policies to strict scrutiny. On the other hand, it held that the university is entitled to broad deference on the question of admissions.
This contradiction raises a challenge to the very notion of strict scrutiny: If strict scrutiny can mean total deference, does it mean anything at all?
Fisher concerned whether affirmative action, granting college admissions preference to racial minorities, violated the Equal Protection Clause of the Fourteenth Amendment. In particular, it asked whether the University of Texas’ plan met the standard of strict scrutiny set forth in prior cases: Grutter, Gratz, and Fisher I.
Under these cases, colleges could practice affirmative action only if they meet three criteria: First, their affirmative action programs needed to pass strict scrutiny; the university had to show with clarity that its “purpose or interest [in discriminating by race was] both constitutionally permissible and substantial, and that its use of the classification [was] necessary . . . to the accomplishment of its purpose.” Second, there could not be a quota for racial minorities, but race could be used as a factor in holistic evaluations. Third, colleges bore the burden of proving a “nonracial approach” would not pro mote their interest in the educational benefits of diversity “about as well and at tolerable administrative expense.”
These criteria set a high bar for colleges to meet. Affirmative action programs must be narrowly tailored to specific, compelling goals. To ensure that they are narrowly tailored, the programs’ effects must be measurable and alternatives must be considered. Here, strict scrutiny is indeed strict.
However, while the majority sets this high standard with one hand, it tears it down with the other. The following is the core of the majority’s argument:
The University of Texas justifiably employs affirmative action to reach a “critical mass” of minority students. There is no hard number that constitutes a critical mass; that number would be a quota, and racial quotas are impermissible under Regents of California v. Bakke. Instead, a critical mass is defined with reference to university objections, including “the destruction of stereotypes, the promot[ion of] cross-racial understanding, the preparation of a student body for an increasingly diverse workforce and society, and the cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry.” There is no way for courts to measure the fulfillment of these goals; how do you quantify the legitimacy of future leaders? Accordingly, the majority concludes, courts must defer to the University’s judgment. Only a university can determine when it has reached a “critical mass;” they will know it when they see it.
The majority ends with a tribute to universities: “A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness.’ Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission [emphasis added].”
Yet, this tribute does little for the majority’s argument. Although the Court claimed to apply strict scrutiny, and although strict scrutiny requires the evaluation of measurable data, the Court concluded that no measurement was necessary. This is a contradiction in the most basic sense.
Hence the question, if strict scrutiny can mean total deference—or, in Alito’s language, “blind deference”—does it mean anything at all? Perhaps not.
To say that a court must apply strict scrutiny is to ask, in layman’s terms, for the court to be extra careful. For a law or policy to pass high scrutiny, judges need to be really sure it’s a good idea. But what counts as really sure?
In an ideal judicial system, the outcome of cases does not depend on the ideology or political beliefs of a judge. This legal certainly is best maintained through bright-line rules, which give judges little room to maneuver. Conversely, if the lines are blurry, judges can consciously or subconsciously shift them to reach ideologically favorable outcomes.
Do judges actually do this with strict scrutiny? We could measure it. An empirical study could track how often judges reach ideologically favorable outcomes, that is, holdings which align with their preferred policy outcome. It could then check whether judges were more likely to reach favored conclusions when conducting strict (or intermediate) scrutiny. If the second number is higher than the first, then scrutiny is conducive to bias.
But even if it is not—I do not believe that bias affected Justice Kennedy’s holding—scrutiny poses a second challenge to our legal system: it makes our laws vague and our legal outcomes uncertain. Indeed, if strict scrutiny can mean very strict on one day and kind-of-strict on the next, then defendants can never know if they are breaking the law. By and large, our legal system would be better off with less ambiguity.
This post does not call for an end to the scrutiny system. However, it does encourage caution in our application of scrutiny. If we are to have blurry lines, we should strive to keep them as clear as possible. If we are to apply strict scrutiny, we should ensure that “strict” means the same thing in each case. By granting total deference to the University of Texas, the Fisher majority failed this task.