“Phew:” Liberal SCOTUS Justices See Themselves as Savvy, Not Suckers

In a recent Slate piece, I asked whether the liberal Justices are savvy or suckers for signing on to recent voting rights and affirmative action rulings:

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?

Well we have an answer of sorts, courtesy of Michelle Olsen:

Gerson asked Breyer about the Fisher affirmative action case, noting “that the media seemed to dismiss [it] as insignificant.” The Supreme Court in Fisher returned the dispute to the lower court, eight months after argument, with little commentary….
Bakke and Grutter held, in Breyer’s admitted shorthand, that “you can use affirmative action, but be careful, don’t go too far.”
When the same issue reached the Court again in Fisher, “there was a lot of speculation,” Breyer told the audience. “Would there be a change? Would [the justices] say no affirmative action? What would the Court do?” Breyer asked, repeating the questions on many people’s minds.
“I can tell you what the Court did do,” Breyer continued, with his characteristic verve.
“Seven members of the Court said Grutter is the law. So, what do I say? ‘Phew,’” drawing laughter. “I say that’s right; that was my view. Grutter is the law.”…

“So, that’s why I think it’s an important case,” Breyer concluded. “Sometimes an important case is simply reaffirming another case, which reaffirmed another case.”

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