Guest Host: Susan Page

People wait in line to enter the U.S. Supreme Court building June 20, 2016 in Washington, DC.

People wait in line to enter the U.S. Supreme Court building June 20, 2016 in Washington, DC.

The Supreme Court votes 4-3 to uphold the affirmative action program at the University of Texas, and deadlocks on Obama’s immigration plan. Jeffrey Rosen of The National Constitution Center joins Susan Page to discuss the implications of the rulings.


  • Jeffrey Rosen President and CEO, The National Constitution Center; author of "Louis D. Brandeis: American Prophet"


  • 11:07:43

    MS. SUSAN PAGEBut first, joining us from a studio in Philadelphia, Jeffrey Rosen. He's president and CEO of the National Constitution Center. He's also the author of a new book, "Louis D. Brandeis: American Prophet." Jeffrey Rosen, thanks for being with us.

  • 11:08:14

    MR. JEFFREY ROSENGreat to be here.

  • 11:08:15

    PAGESo, Jeff, the Supreme Court just ruled on Fisher v. the University of Texas at Austin, a big case involving the use of affirmative action in undergraduate admissions. What did the Court decide?

  • 11:08:29

    ROSENIt is indeed a big case. And it's a surprising case in many ways 'cause lots of folks had expected the Supreme Court to strike down the affirmative action program at the University of Texas, but instead in an opinion by Justice Anthony Kennedy, joined by Justices Ginsburg, Breyer and Sotomayor, the Court upheld the program. The University of Texas at Austin basically admits students in two ways.

  • 11:08:54

    ROSENIt admits students from the top 10 percent of their Texas high schools. And because Texas regions are geographically segregated, this increases minority enrollment, but it also engages in a kind of holistic review that considers race as one of several factors. And it was that part of the program that was challenged. And in this very dramatic opinion, Justice Kennedy reaffirms that schools do have a compelling interest in achieving the educational benefits that flow from student body diversity.

  • 11:09:31

    ROSENHe said that it's legitimate to use affirmative action to end stereotypes and prepare students for a diverse workplace. And that the university doesn't have to specify exactly how many students it's looking for. What's so dramatic about this case is Justice Kennedy, in the past, really had seldom met an affirmative action program that he was willing to uphold. And he had struck down lots of programs before. In an earlier version of this case he'd sent it back to the lower courts for more fact finding.

  • 11:10:00

    ROSENAnd some have suggested that we're seeing a new Justice Kennedy on race. Just last term, in a case called Inclusive Communities, a Fair Housing Act case, he generously read the Fair Housing Act to take account of disparate impact claims. Whether he's channeling a new gestalt in the country about the need for diversity or anticipating the way that the Court might go if Justice Scalia is replaced by a Democratic appointee is not clear. But it's very striking to see him upholding this affirmative action plan.

  • 11:10:36

    ROSENAnd Justice Alito wrote a scathing, passionate dissenting opinion, which he read from the bench, which basically accused Justice Kennedy of inconsistency, read his previous opinions back to him and with scrupulous attention questioned the entire premise of affirmative action. So this was a dramatic case.

  • 11:10:54

    PAGEHow unusual is it to see a Supreme Court justice, like Justice Kennedy now, seem to change or evolve on important issues like this?

  • 11:11:06

    ROSENWell, justices do evolve. Of course Justice Souter famously evolved so much that the rallying cry for his appointees was no more Souters. But Justice Kennedy has been - he's a principal defender of liberty and he hasn't evolved all that much. There have been a bunch of empirical studies that show - have shown he's been remarkably consistent in favoring both liberty and colorblindness over the years. So if he is in fact evolving on the question of race and how colorblind the Constitution has to be, that would be both unusual and a very big deal for affirmative action in America.

  • 11:11:39

    PAGEYou noted this is a 4-3 decision. We know that there's a vacancy on the Supreme Court with the death of Antonin Scalia earlier this year. Why - but why did only seven justices weigh in on this matter?

  • 11:11:51

    ROSENJustice Elena Kagan, when she was in the solicitor general's office, filed a brief in an earlier version of the case and therefore she was recused. And that's, again, what makes the case so unusual. Lots of people expected that it would be Kennedy and the conservatives in a lopsided opinion striking down affirmative action. And, in fact, it was the opposite.

  • 11:12:09

    PAGEDoes it give it any less force that only seven justices ruled on this?

  • 11:12:13

    ROSENNo. Unlike the immigration case, a huge deal that the Court also decided today, where there was a 4-4 split, which upholds the lower Court and leaves in place the injunction against the Obama administration's immigration plan, this affirmative action decision has the full force of law, and therefore affirmative action in America, at least in this incarnation, remains Constitutional.

  • 11:12:35

    ROSENNow, the Court did say this is an unusual case. It may not have really broad application 'cause other universities don't have this precise program. But it's certainly important bellwether of a new sympathy for affirmative action on the Court.

  • 11:12:48

    PAGEAnd when you think about the implications for other universities across the country, I wonder if this gives them a Supreme Court-approved template to use if they want to have some form of affirmative action.

  • 11:12:59

    ROSENYes. And the Court provided that template in a 2003 case called Grutter, where it basically said race can be used as one of several factors in holistic review. And the real question was, is Grutter gonna be overturned. Justice Thomas, in his separate dissent in the case this morning said, I want to overturn Grutter. I think that the Constitution has to be completely colorblind.

  • 11:13:21

    ROSENAnd it looks like Justices Roberts, Alito and Thomas are all suspicious of Grutter. But what's significant now is that universities across the country know that if they use race as part of a carefully tailored program, and they consider alternatives and they can demonstrate that there are benefits to diversity, then affirmative action is Constitutional.

  • 11:13:44

    PAGEYou mention, Jeff, the Supreme Court decision that also came down today on immigration. A 4-4 split. Tell us what was at stake in this case.

  • 11:13:53

    ROSENWell, this is a case involving the Obama administration's decision to defer the deportation of immigrants. This was a program adopted in 2012 that said that the administration would exercise prosecutorial discretion. The result of it would be then an estimated 4.3 million individuals who are here illegally and have a child who's here legally would be able to apply to stay in the country and get a variety of public benefits.

  • 11:14:20

    ROSENThe program was challenged on a bunch of grounds, including that it violated the President's duty to take care that the law is faithfully executed under Article 2 of the Constitution and that it was adopted through improper procedures, under the Administrative Procedure Act. The administration said we have discretion to decide when and how to deport people. And in a really important 4-4 split the justices disagreed.

  • 11:14:46

    ROSENFour of them thought that the program violated the law. They didn't issue a written opinion so we don't know whether they thought that the Constitutional provisions were violated or the Administrative Procedure Act. Four justices thought that this was within the President's prosecutorial discretion, but the hugely important effect of this decision is that the enforcement of the administration's deferred action policy will remain blocked by a nationwide injunction. And the program will not go into effect.

  • 11:15:16

    PAGEYou know, in both these cases we would have had different outcomes, we assume, if Justice Scalia were still on the bench.

  • 11:15:25

    ROSENYes. In the immigration - well, let's see, in the immigration case, Justice Scalia presumably would have been with the conservatives so the injunction would have remained blocked. And in the affirmative action case we would have had Justice Scalia, it would have been a 4-4 split, with Scalia, Thomas, Alito and Roberts against Kennedy and the liberals. So that would have upheld the lower court decision, which did uphold the programs. So actually, in fact, surprisingly, as we think it through, the practical result in both cases would have been the same, although the votes would have been different.

  • 11:16:02

    PAGEThe votes would have been different, but the impact would have been the same. That is interesting. Well, we're almost to the end of this Supreme Court session. What are the big cases we're still waiting to get?

  • 11:16:12

    ROSENA very important case out of Texas involving abortion clinics and access to them that will be decided next. As well as a case involving gun rights. But the abortion case is the main one.

  • 11:16:22

    PAGEAnd do - what's your sense of what will happen in that abortion case?

  • 11:16:26

    ROSENThis is the time when you're not supposed to predict the results of Supreme Court decisions. There had been speculation that that might be another 4-4, but, you know, Justice Kennedy's willingness to work with the liberals in this case and Chief Justice Roberts' desire to avoid 4-4 splits, as he did in the contraceptive case just a few weeks ago, suggests that maybe we'll find a technical result that will avoid a polarized decision. But we'll find that out on Monday or Tuesday.

  • 11:16:56

    PAGEAnd, Jeffrey, just one - we just have a minute left. But when you assess the Supreme Court term generally, what strikes you about this? What do you think is notable?

  • 11:17:04

    ROSENWell, it's such a dramatic term. Justice Scalia's untimely death and what could have been a series of 5-4 polarized decisions, instead resulted in some unexpected compromises, as in the abortion case. Some unexpected alignments, as in this affirmative case, which, who knows, might have come out differently if the alignment on the Court were different. And just an effort by at least the centrist judges, joined by Chief Justice Roberts, to come together and achieve a kind of consensus with all of them waiting to see what will happen next.

  • 11:17:35

    ROSENAnd the strong sense that Constitutional law could be transformed for a generation based on whether Merrick Garland is confirmed and who wins the next presidential election. So it is in some ways a calm ending to the term, but it's a sense of the future storms that are ahead.

  • 11:17:52

    PAGEJeffrey Rosen, from the National Constitution Center, thanks so much for joining us.

  • 11:17:55

    ROSENThank you. It was a pleasure.

  • 11:17:56

    PAGEWe're gonna take a short break and when we come back we'll turn to our other topic, which is those minute health clinics that you've seen at the CVS, at the Walmart, at the Target. Whether you've used them, whether you should. Stay with us.

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