Kagan wasn't part of this at all, "KAGAN, J., took no part in the consideration
or decision of the case."
And you can divide the majority opinion of this case into two views:
- One view is that government can override the equal protection clause BUT only if it has a compelling interest and goes about it in a proper fashion.
- The other view is that there is no constitutional exception to equal protection under the law.
THE LIBERAL VIEW
Kennedy's majority opinion makes clear that he is defending government's 'right' to override the equal protection clause, BUT not in this particular case. (The dissenting opinion from Ginsburg is an argument that government can go much further in overriding the equal protection clause and that explicit racial recognition should be permitted as an admissions policy.)
THE 'CONSERVATIVE' VIEW
Both Justice Scalia and Justice Thomas felt the need to write separate opinions, despite concurring with the majority decision. They did so because they had very different reasons for their decisions. They do not believe the equal protection clause permits to exceptions.
(I put "conservative" in single quotes because it can have a different meaning when it refers to a Supreme Court Justice than it does when applied to someone's position in the American political spectrum. For the Court, it means that they believe the constitution should be understood as the founding fathers understood it. Strict Constructionism, as opposed to the view that it can be re-interpreted to mean other than the founding fathers intended.)
AND THEN THERE IS GINSBERG
Michael, you appear to believe that Justice Ginsburg had valid points. I would suggest that she should read Thomas' opinion to understand how racist her position is, to say nothing of how her need to understand that her personal beliefs should not supersede what is written in the constitution.
Here are some excerpts from FISHER v. UNIVERSITY OF TEXAS AT AUSTIN ET AL:
LIBERAL VIEW EXCERPTS
Kennedy refers to Hopwood v. Texas, 78 F. 3d 932, 955 (1996), when he writes, "It ruled the University’s consideration of race violated the Equal Protection Clause because it did not further any compelling government interest." - and this sets up his main focus and concern, which appears to be that it is okay to violate equal protection, but only with a compelling government interest.
He also notes that the Court of Appeals agrees that it is okay to violate equal protection, as long as it is done with a plan and is in the interest of diversity: "The United States Court of Appeals for the Fifth Circuit affirmed. It held that Grutter required courts to give substantial deference to the University, both in the definition of the compelling interest in diversity’s benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal. Applying that standard, the court upheld the University’s admissions plan. 631 F. 3d 213, 217–218 (2011)."
He quotes Justice Powell, in Bakke: "Any racial classification must meet strict scrutiny, for when government decisions 'touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.' Id., at 299." This is still the elitist view that by tweaking the law a bit some sociological Utopian view of "diversity" can be attained, and that this is not just permissible, but that it takes precedence over any strict application of equal protection. It also carries the hidden assumption that government isn't really limited by the constitution and that the constitution can be interpreted so loosely as to mean whatever is ideologically impelled.
Here is where Kennedy states it very openly: "Grutter made clear that racial 'classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.' 539 U. S., at 326"
All of these Supreme quibbles are really the same thing... they are saying we can't be flagrant and out in the open about making decisions based upon skin color. That wouldn't be accepted. So, we need to pretend that we aren't even seeing the amount of melanin in the skin cells, while none the less, ensuring that lots and lots of students of color are admitted. They are saying, "Be racist, but for a good cause, and in a way that won't get you caught being racist, and then we'll call it constitutional even if it isn't."
Here is Kennedy again, "The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity."
Look at this language: "Because 'the efforts of the University have been studied, serious, and of high purpose,' the Court of Appeals held that the use of race in the admissions program fell within 'a constitutionally protected zone of discretion.' Id., at 231." Where is that section of the constitution? The one that says Equal Protection under the law has some exceptions? I must have missed it.
'CONSERVATIVE' VIEW EXCERPTS
Whereas Kennedy wrote at great length on "compelling interest" and the burden to demonstrate that interest, JUSTICE SCALIA, wrote: "I adhere to the view I expressed in Grutter v. Bollinger: 'The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.' 539 U. S. 306, 349 (2003) (opinion concurring in part and dissenting in part). The petitioner in this case did not ask us to overrule Grutter’s holding that a 'compelling interest' in the educational benefits of diversity can justify racial preferences in university admissions."
Thomas wrote: "I write separately to explain that I would overrule Grutter v. Bollinger, 539 U. S. 306 (2003), and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause."
Also from Thomas: "The Fourteenth Amendment views racial bigotry as an evil to be stamped out, not as an excuse for perpetual racial tinkering by the State." And he quotes DeFunis v. Odegaard, 416 U. S. 312, 342 (1974) “The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized”
Thomas is very clear: "My view of the Constitution is the one advanced by the plaintiffs in Brown: '[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.'"
p.s. I wish we could grant Clarence Thomas an extremely long life and then clone him!