Comes Before the Court the Future

Over the weekend, the following letter to Justice Kennedy regarding Fisher v. Texas made its way to Washington, where I hope it is of some benefit.

Justice Anthony Kennedy

The Supreme Court of the United States
One First Street, N.E.
Washington, D.C. 20543

Dear Justice Kennedy:

With all due respect, I hope you are not offended that I am bowing to public reports that you are the possibly deciding vote on Fisher v. Texas.  I hope the clerk who screens your mail is not similarly offended.  I am not a lawyer but I write in the hope that I can help you see Fisher from a different point of view.


About a decade before President Reagan named you to the Court in 1988, I was a young newspaper reporter in Corpus Christi, Texas.  I was one of the first journalists to begin writing about the demographic change that the country was about to undergo.  I had acquired my sense for the power of demography when as a teenager I witnessed my town change overnight after Congress closed the local Air Force base and the farmers in the county around us simultaneously mechanized their cotton fields.

My point is that I have followed this thing from the very beginning, and so my perspective has been shaped by much closer observation than most people, including, if I might be immodest, all nine members of the Court and most of the lawyers presenting arguments before you last week.

Fisher is presumed to be about affirmative action.  But it is more so about the country’s future; and it is certainly more than a constitutional construct that might seem invalid from a jurist’s point of view.  I am not writing to debate the legal merits of the case.  Rather, I am hoping to focus your attention on its practical impact.

After working in Texas, I moved to California, your home state, to continue my observation of the population changes that were gaining momentum.  I observed there, as I would later in Florida, that the social condition and growth rates of the Hispanic/Latino population were the same as in Texas.  And many years later, I am struck by a circumstance that I think you need to consider before you vote on Fisher:  Forty years after the modern-day growth of the Hispanic/Latino population began, California is a fiscal mess.  Had the Constitution many years before not been violated by practices that in their impact were discriminatory and had a more aggressive affirmative action program been put into effect once those anti-constitutional practices became well known, California perhaps might have averted the financial morass in which it now wallows – and which awaits the nation if Hispanic/Latinos are hamstrung from achieving economic parity with the rest of the country’s population.

Fisher, then, is not about a present violation of the Constitution but a commentary about how ill-considered our approach has been to the nation’s future in which minority populations will be asked to bear more of the fiscal load of the country’s financial responsibilities – but not be able to do so because they have not been given the affirmative opportunity to obtain professional educations and degrees to expand their personal financial position and therefore generate more tax revenue.

Fisher is not about benefitting minorities at the expense of individuals like Abigail Fisher.  Fisher is about not having enough Abigail Fishers to carry the load.  In benefitting minority populations directly, Fisher properly decided would benefit the nation itself and, ironically, Ms. Fisher herself, whose close-minded approach to this case should not be adopted by more mature and responsible parties who bear the responsibility to have more vision and understanding of the future.

No Associate Justice of the Supreme Court can possibly believe that a state like Texas, whose population is almost 40 percent Hispanic/Latino, will be able to meet its fiscal responsibilities when only 24 percent of its Hispanic/Latino population attends schools like the University of Texas at Austin.  And, of course, private colleges and universities would be forced under an adverse decision to scale back their preferences as well.

Justice O’Connor said in 2003 that she thought affirmative action programs would not be needed in 25 years as demography continues to transform the nation.  She might have been right.  All I know is that in the states in which the nation’s new demography is the most evident, the income of the Hispanic/Latino household has remained about the same for the last 40 years – and on such a foundation the nation cannot stand.  Fisher is by far more than an argument over semantics or someone’s sense of what constitutes fair play.  No, Fisher rises to the level of a national security concern.

You might not see it that way, but wherever we are as a nation 25 years from now should not be defined by a decision that might make legal, constitutional sense now but makes no sense at all otherwise.

I wish you well in your deliberations.  I believe you can find a way to constitutionally defend an affirmative vote on affirmative action.  I hope that if you are the pivotal vote that you decide in a way that does not further jeopardize a nation already trying to figure out how to remain economically viable as its population ages.


Jesse Treviño


Treviño is the former editorial page editor of The Austin American-Statesman.


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