Broadly speaking, the Supreme Court's Fisher ruling permits, as the Court's previous opinions had, the use of affirmative action in limited circumstances. At the same time, though, it highlights the burden that schools must meet to defend their race-conscious programs.
Although many Court watchers thought that the justices would use the case – brought by Abigail Fisher, a white student who attributed her rejection from the University of Texas to the school's affirmative action policies – to reach the broad conclusion that affirmative action is unconstitutional, the Court rejected that approach.
In her dissent, Ginsburg expressed relief that the Court avoided a more sweeping ruling against affirmative action, but she nonetheless took her fellow justices to task for their decision to send the case back to the appellate court.
Ginsburg took the view that there was no need for a remand because the program employed by the University of Texas clearly passed muster under her reading of the Court's previous affirmative action cases. "In my view … there is no need for a second look," she said from the bench.
Ginsburg also took the opportunity to reiterate her view that affirmative action is an appropriate way to rectify historical discrimination. "I have several times explained why government actors, including state universities, need not blind themselves to the still lingering, every day evident, effects of centuries of law-sanctioned inequality," she said.
Meanwhile, Ginsburg also voiced her disapproval with the Court's 5-4 decisions in two cases arising under Title VII of the Civil Rights Act of 1964, which prohibits certain forms of discrimination in the workplace. Both Vance and Nassar involved questions of what an employee needs to establish to demonstrate that an employer is liable for a Title VII violation. In both cases, the majority picked the standard that makes it harder for employees to win. Ginsburg dissented in both cases.
From the bench, Ginsburg said that the two decisions "dilute the strength of Title VII in ways that Congress could not have intended."
In her comments from the bench, Ginsburg referenced the 2007 case Ledbetter v. Goodyear Tire and Rubber Company. As she did Monday, Ginsburg dissented from the bench in Ledbetter, criticizing the Court for impermissibly narrowing Title VII.
Two years after the Ledbetter decision, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, which effectively undid the Court's decision in that case. Yesterday, Ginsburg noted her desire for similar legislative responses to the Vance and Nassar decisions.
"Today, the ball again lies in Congress' court to correct the Court's wayward interpretations of Title VII," she said.