COMMENTARY: Supreme Court gets it right on race, but how much does it matter?

Isaac Bailey | 6/24/2016, 12:17 p.m.
Black South Carolina journalist discusses the recent decision to allow the University of Texas to continue to use affirmative action ...
Supreme Court Richard Jenrette/CNN

Editor's note: Issac Bailey has been a journalist in South Carolina for two decades and was most recently the primary columnist for The Sun News in Myrtle Beach. He was a 2014 Harvard University Nieman fellow. Follow him on Twitter: @ijbailey. The views expressed are his own.

(CNN) -- In a bit of a surprise, the Supreme Court, on a 4-3 vote, upheld a lower court ruling allowing the University of Texas to use race as one of many factors in its admissions process. The decision, authored by Justice Anthony Kennedy, beat back a claim by Abigail Fisher, a white woman who argued she was unfairly not admitted to the university because of her race. This is the second time the Court has considered Fisher's case; in 2012, the justices sent the case back down to a lower court for review -- after which the Supreme Court took the case up again.

It is noteworthy that today's ruling seemed to hinge on a shift from Justice Anthony Kennedy, long considered a swing vote on cases related to social issues. His opinion for the majority in this case -- which said courts should give universities significant but not total discretion in devising admissions policies -- is a departure from his argument in the earlier Fisher case, when he argued that the lower court should have set a stricter standard to uphold the admissions policy. In today's opinion, he went so far as to link the case to previous desegregation rulings, including quoting from a 1950 case that invalidated a Texas state law barring African Americans from law schools.

Also notable was Justice Antonin Scalia's absence, but not because his vote would have changed things. He did sit for oral arguments in the case before his death, and had he lived, the decision would have likely been 4-4 -- meaning that (as in the controversial U.S. v. Texas immigration case, also decided today) the lower court ruling would still have been affirmed by an equally divided court.

But even though the result would have been the same, today's decision is significant even in Scalia's absence - because of comments he made during that oral argument in December, when he suggested minority students might not be equipped to succeed in such a challenging environment and maybe shouldn't try to attend elite schools.

Scalia's comments were a version of something I often heard in the 1990s, when I was one of the handful of black students at Davidson College, a Top 10 private liberal arts in North Carolina. Several white students -- who were an overwhelming majority at that time (today, the numbers are better but still close to 70 percent white) -- weren't shy about openly suggesting minority students probably weren't as qualified. Their assumption seemed to be a lot like Fisher's, that white students are entitled to such places because they are white.

The core of Fisher's claim: too many supposedly less-qualified minority students had gotten in, robbing her of an opportunity to attend the school of her choice.