Legal experts are wondering why the Supreme Court's short and narrow ruling to send an affirmative action case back to a lower court took 8 months to craft, twice as long as most cases.
"The opinion is very brief, given how long it took. And I think one reason for that is there was originally a much more ambitious opinion, but it failed to garner sufficient consensus, or maybe Justice Kennedy just didn't like where he ended up with it," Tejinder Singh wrote on SCOTUSBlog's live blog.
The court was weighing a challenge to the University of Texas at Austin's admissions policy, which admits the top students from every Texas high school and considers race as a factor for other applicants.
In 2003, the Supreme Court ruled that colleges could consider race as a narrowly tailored factor in admissions in order to achieve a "critical mass" of minority students.
On Monday, the Supreme Court ruled that the Fifth Circuit appeals court in Texas should have applied strict scrutiny to determine whether UT-Austin's use of race on top of its policy of admitting top students from around the state complied with the 2003 ruling. The case is going back to the Fifth Circuit for further review.
The court didn't overturn its 2003 ruling, and it didn't even overturn UT-Austin's policy.
The 13-page opinion released Monday probably took a couple of days to write, speculates UCLA law professor Adam Winkler, who previously predicted the court might do away with racial preferences altogether. The court's conservative justices may well have tried to issue a bold ruling undoing affirmative action.
"There is probably a big landmark ruling sitting on somebody's hard drive right now that may never see the light of day," Winkler said.
It's also possible the case took so long because Kennedy was trying to get liberals on board with a more detailed prescription for the burden universities would have to carry to show their affirmative actions were necessary to achieve diversity, UCLA law professor Richard Sander wrote in SCOTUSBlog.
Meanwhile, he wrote, "conservatives on the court, who would have preferred a broad ban on racial preferences, did not want to suggest a detailed formula for legitimizing them."
In the end, the narrow ruling was probably the only option the liberals and conservatives could agree on.
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