I put together a big roundup of blog reactions. It's part of a series of posts I wrote on the decision, one for each opinion (links collected at the top of the post).

I wonder sometimes if things like that don't bespeak of some underlying movement among the Justices. Breyer's dissent, especially towards the end, talks about the implications of the "plurality opinion" in a way that I don't wonder if at one time it wasn't the "majority opinion" and that later Kennedy broke off, possibly after reading the dissent.

I must admit that the best blog commentary on this decision is here at confirmthem.

Lior Strahilevitz trails Kennedy through the briars with some sympathy and some skepticism. If you prefer bile, Strahilevitz' take won't satisfy.

Robert's comment beats any bloging hands down: The way to stop discrimination on the basis of race is to stop discriminating on the basis of race

bittern:
Thank you for your calm and thoughtful reply.

What bothers me much more than the press' slanted coverage of this story are the Democrat's slanted and misleading sound bites. I don't know about you, but I have found the Democratic Party to be amazingly irresponsible in its rhetoric during the Bush 2 years. Like in this case-- not only is all nuance and subtlety thrown out-- but even the vague outlines of the truth are sacrificed, in order to pander to a largely black audience.

Is it showing strong or principled leadership to tell an audience that the US Supreme Court is actively trying to bring back segregation?!? How come I am the only one who sees how pernicious that message is? It just rips at the soul of a society to have bona fide political leaders telling audiences that the highest court in the land is filled with closet racists. Don't you see that? It is fine to disagree with the Court, but don't insinuate that Justice Roberts is a racist! It is just a vicious lie. He's a decent and remarkable man with whom some Democrats have political disagreements. Why is it so hard to stay out of the mud and the ad hominem garbage?

A party that uses this garbage to obtain power is not a party that should be trusted with power.

Now, obviously, the Republicans are by no means perfect, but they do not routinely smear the fundamental institutions of our society in their pursuit of power. "Bhaa!!" I can see you scoff. Well, do me a favor. Watch the next Republican debate. I guarantee you won't see the largely white Republicans tell their largely white audience that the fundamental, and most esteemed institutions of our society, are out to screw them. The courts, the judges, the colleges, the powerful, the politicians, the captains of industry-- all prejudiced against them so that Blacks and Hispanics can get ahead. Everybody trying to keep you down, steal what is yours... unless you vote for us!! Can you imagine the shi*storm that would explode if the Republican candidates said something like that?

Well, the Democratic candidates make that exact pitch every day, and nobody says a word.

Bittern, you’re not right that it was a 4-1-4 decision, it was but it is true that the concurrence of Kennedy is of crucial importance in understanding what the affirmative action or diversity standards will be moving forward, certainly for pre college public schools, but probably also much more widely than that.

However, Kennedy’s language in his Grutter dissent (the case which narrowly found the Univ. of Michigan’s affirmative action program permissible) is also of crucial importance. In fact under those facts Kennedy found that Michigan Law’s program weighted race too heavily and that it was in actual fact a rough quota system masking under different name and pretext.

He wrote in his Grutter dissent:

To be constitutional, a university's compelling interest in a diverse student body must be achieved by a system where individual assessment is safeguarded through the entire process. There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decision making. The Law School failed to comply with this requirement, and by no means has it carried its burden to show otherwise by the test of strict scrutiny. ***

If universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review.

Following Grutter the conventional wisdom arose that as long as universities mouthed slogans such as “one factor among many” and perhaps had complex individual weighing admissions programs, then admissions goals for certain minorities could in fact work as rough minimum quotas. Such a approach is very unlikely to get Kennedy’s support in any future Supreme Court case considering permissible diversity programs including by universities.