Justice Kennedy and the Domains of Equal Protection

Many have noticed that Justice Kennedy softened his stance on race in Parents Involved in Community Schools v. Seattle School District No. 1. To be sure, he has always been one of the more moderate members of the colorblindness camp, defecting on occasion. But he has nonetheless taken a hard line in cases like Metro Broadcasting and Croson. Both the substance and the rhetoric of his concurrence in Parents Involved were importantly different.

The quickly emerging consensus is that Justice Kennedy’s new position on race stems from his new position on the Court. Like his swing-vote predecessors Justices Powell and O’Connor, Kennedy is feeling the pressure associated with being the middle Justice on a divided Court. The deep logic of this middle kingdom, so the story goes, pushes for the kind of compromise that each of these Justices has endorsed. It is something akin to a “don’t ask, don’t tell” approach to race-conscious decisionmaking: use race, but don’t be obvious about it. Indeed, Justice Kennedy’s settlement on race closely resembles Powell’s and O’Connor’s. He deemed obvious and straightforward uses of race illegitimate but left room for schools to pursue their objectives through indirect and general means. He shunned labels and “racial balancing” while lauding the idea that race contributes to diversity. At first glance, it all seems conventional and pat. The conventional view, in short, is that the story of Justice Kennedy’s concurrence begins with Bakke and Grutter.

I disagree. While Justice Kennedy’s new role as a swing vote surely helps explain his opinion in Parents Involved, his “settlement” on race is recognizably different from the terrain once occupied by Justices Powell and O’Connor. The “don’t ask, don’t tell” approach to race is the compromise of a pragmatist. But Justice Kennedy has always been an idealist, and his concurrence in Parents Involved is an idealistic opinion. He speaks in the cadence of a constitutional romantic, not a fact-driven realist. Further, Kennedy relies on indirect and general race-conscious strategies for different reasons than Powell and O’Connor do. And while he seems more open to embracing a positive vision of race and thinking about the state’s inevitable role in con-structing identity, his vision may also be more tied to context and less generalizable across cases.

To identify the precise contours of Kennedy’s settlement on race, we should begin not with Bakke or Grutter, but with League of United Latin American Citizens (LULAC) v. Perry, a voting-rights decision issued last year. There Justice Kennedy, long hostile to the use of race in redistricting, objected to the dismantling of a majority-minority district on the rather remarkable ground that the Latinos mobilizing there “had found an efficacious political identity.” Following on LULAC’s heels was Parents Involved, where Justice Kennedy suggested that racially drawn attendance zones and race-conscious school siting decisions — both variants of race-conscious districting — represent appropriate means for local schools to deal with the problem of racial segregation. Both of these positions run directly contrary to Justice Kennedy’s prior equal protection jurisprudence.

121 Harv. L. Rev. 104 (2007) | DOWNLOAD PDF | LEXIS NEXIS | WESTLAW