Fisher and Shelby County: Two of a Kind – Sheldon Nahmod (Guest Blogger)

This post, which originally appeared in Nahmod Law, is reposted with permission from the author.

The Supreme Court handed down two important decisions on race in this last week of its 2012 Term that have more in common than appears on first reading.


The first is Fisher v. University of Texas (PDF), 133 S. Ct. — (2013), where the Court held, 7-1, in an opinion by Justice Kennedy, that the lower federal courts did not properly apply the required strict scrutiny to the University’s affirmative action plan.

Rather than deferring to University administrators and their good faith regarding the question of whether the affirmative action plan was narrowly tailored to accomplish the compelling interest in diversity, the lower federal courts should have instead engaged in “stricter” scrutiny and asked whether the University adequately considered the availability of race-neutral alternatives to its affirmative action plan.

In so ruling, the Court did not have to address the question raised by Justices Scalia and Thomas in their separate concurring opinions as to the propriety of using race at all in university admissions for diversity purposes.

Shelby County

The second is Shelby County v. Holder (PDF), 133 S. Ct. — (2013), a blockbuster decision where the Court held, 5-4, in an opinion by Chief Justice Roberts, that Congress had exceeded its powers under section 2 of the Fifteenth Amendment when it re-enacted the pre-clearance coverage formula of section 4 of the Voting Rights Act of 1965 because that coverage formula was based on outdated data regarding voting and race in the covered Southern states.

Fisher is a Fourteenth Amendment equal protection case and Shelby County is a Fifteenth Amendment case. But the two cases obviously have race in common.

Increasing Supreme Court Discomfort with Affirmative Action

But they also have in common the Court’s increasing discomfort with affirmative action plans involving race. Fisher, of course, expressly dealt with an affirmative action plan for university admissions.

But I read Shelby County as similarly involving a kind of affirmative action plan, this one involving a Congressional remedy directed against states and local governments that have previously discriminated on the basis of race in voting.

Reluctance to Defer to Politically Accountable Bodies

Perhaps more deeply, both cases demonstrate the Court’s unwillingness to defer to politically accountable bodies of government at all levels–federal, state and local–that have enacted such plans in order to provide for diversity and remedy past racial discrimination.

The Court has apparently concluded that “enough is enough” because the United States is sufficiently close to a “color blind” society to justify much “stricter” scrutiny–which may be fatal in fact–of such admissions and voting plans.

Of course, whether this is an accurate description of our society remains a matter of considerable debate.


I previously blogged on the basics of affirmative action on November 5, 2009. Then, on October 10, 2012, I posted two short videos of interviews on Fisher. You might find these informative.