I’ve just written this jurisprudence essay for Slate. It begins:
At first glance, the 7–1 vote in the Fisher affirmative action case decided by the Supreme Court is puzzling. While the decision about the University of Texas’ admissions policies was essentially a punt, putting off for another day the future constitutionality of affirmative action programs, two of the court’s liberals (Justice Sonia Sotomayor and Justice Stephen Breyer) joined in an opinion that seemed to impose a very tough hurdle for any program’s constitutionality in the future. (Justice Ruth Bader Ginsburg dissented, and Justice Elena Kagan recused herself). The ruling followed a voting decision the week before, when all four of the court’s liberals signed on to Justice Scalia’s entire opinion in an Arizona voting case, which plants the seeds for new state attacks on federal voting laws. And in 2009, all four liberals signed onto an opinion calling into question the constitutionality of the Voting Rights Act, an opinion that Chief Justice John Roberts relied on heavily in his new Shelby County decision striking down part of the act.
What gives? Are the liberal justices acting as suckers for going along with these opinions, allowing conservatives the time bombs to go off in future cases? If, as Adam Liptak, Emily Bazelon, and I have argued, Roberts is playing a long game to move the court far to the right over time, why are the liberals playing along?