Tomiko Brown-Nagin

During her first year as the sole woman on the US Supreme Court in 2006, Justice Ruth Bader Ginsburg wrote a foreword for a biography of the 19th-century lawyer Belva Ann Lockwood and presented the book to a new law clerk in her chambers. On Thursday, the clerk, Daphna Renan, now a professor at Harvard Law School, highlighted the foreword as an example of how Ginsburg broke barriers for women while simultaneously honoring her predecessors in the fight for equality. “Justice Ginsburg was a giant in the law, a luminary, and a leader, as you’ve heard, but she was always ... keenly aware of those who paved the way for her even as she trained her sights on how she could better pave it for others,” Renan said. She delivered the remarks during a virtual Harvard Law School event honoring Ginsburg, who died last Friday...Harvard Law’s current dean, John F. Manning, said the institution regrets the discrimination Ginsburg endured on campus. “It is hard to imagine a more consequential life, a life of greater meaning, and more lasting impact. And Justice Ginsburg did all of this while carrying the heavy weight imposed by discrimination,” he said. “To our eternal regret, she encountered it here at Harvard Law School.” The virtual event included tributes from Tomiko Brown-Nagin, dean of the Radcliffe Institute for Advanced Study, and Harvard Law professors Vicki Jackson, Martha Minow, and Michael Klarman...Brown-Nagin’s remarks explored what Ginsburg’s death means to the civil rights movement and comparisons between Ginsburg and the late Justice Thurgood Marshall, the first Black man to serve on the Supreme Court. Beyond fighting for women’s rights, Brown-Nagin said, Ginsburg had a deep understanding of racial discrimination and poured that insight into cases dealing with race. She cited Ginsburg’s dissent in a 1995 school desegregation case in Missouri in which the justice wrote it was too soon to curtail efforts to combat racial segregation given the state’s history of racial inequality. “The Court stresses that the present remedial programs have been in place for seven years,” Ginsburg wrote. “But compared to more than two centuries of firmly entrenched official discrimination, the experience with the desegregation remedies ordered by the [lower court] has been evanescent.” Ginsburg was, Brown-Nagin said, a “tremendous intellect, a courageous human being, and a giant of the law.”

Amy Coney Barrett has been a federal judge for just three years, but one thing is already certain: She’d mark a sharp turn from Ruth Bader Ginsburg on the Supreme Court. At just 48 years old, the former clerk to Justice Antonin Scalia would lock in a long-term conservative legacy for President Donald Trump, who is expected to nominate her officially this afternoon. Democrats are already anxious enough about the looming 6-3 conservative majority that they’re openly considering expanding court-packing to counter it. But what do we really know about her judicial philosophy, and how she’d rule on major issues? Politico Magazine asked top constitutional law experts and Supreme Court watchers to weigh in...Tomiko Brown-Nagin: “If confirmed, Judge Amy Coney Barrett will consolidate the conservative majority and shift the balance of power on the court decidedly to the right. She has called abortion “immoral” and written that judges are not always bound by precedent. And, consistent with the anti-abortion movement’s current strategy, she has expressed openness to hollowing out Roe v. Wade through state regulations. Justice Ruth Bader Ginsburg made a mark as a strong supporter of reproductive freedom; she consistently voted against state encroachments on Roe v. Wade. A critic of Chief Justice John Roberts’ role in the blockbuster case that upheld the Affordable Care Act in 2012, Judge Barrett is likely to give the law’s opponents a sympathetic hearing in the case pending before the court. By contrast, Justice Ginsburg, a strong voice and critical vote in support of the ACA, would almost certainly have again sustained the federal law. On the question of gun rights, Ginsburg sustained regulations, whereas Barrett has questioned the constitutionality of a categorical ban on gun ownership by felons. The contrast between the two jurists is evident on numerous other issues. Given the stark differences between Justice Ginsburg’s voting record and that of her presumed replacement, Judge Barrett’s nomination promises to transform the Supreme Court. That said, it would be a mistake to dismiss Judge Barrett as a mere partisan or a zealot; her writings bear the mark of a scholar who reasons carefully about legal cases and controversies.”

An article by Tomiko Brown-Nagin: As he forced his knee into George Floyd’s neck, Officer Derek Chauvin appeared chillingly indifferent to both the law and the life hanging in the balance, even when Floyd cried out, “I can’t breathe.” And why would he worry? During his 19 years with the Minneapolis Police Department, Chauvin received numerous complaints. Despite these incidents, his career continued. He never suffered the consequences that might have prevented George Floyd’s death. The protests against police brutality triggered by Floyd’s killing are unlike anything we have seen in this country since the civil rights movement. As in the 1960s, demonstrators, and the nation, face daunting barriers to reform. Today, one such impediment is qualified immunity — a doctrine created by the US Supreme Court in 1967 to prevent frivolous litigation against government officials. It provides broad protection from civil lawsuits, including suits brought against police who violate constitutional rights. Law enforcement officers cannot be held liable for civil rights violations — including death — unless the underlying conduct “clearly” disregards the law. But the degree of clarity that courts require to permit suits for civil rights violations to proceed is excessive to the point of absurdity. The doctrine, continually expanded by the court over time, sets far too high a bar for efforts to hold officers accountable for actions that intimidate, injure, and kill. It excuses conduct, however outrageous, merely because no prior court has ruled on the precise behavior in question. The decision just two weeks ago by US District Court Judge Carlton W. Reeves, in Jamison v. McClendon, captured it all. Reeves wrote that while the civil rights of the Black plaintiff, Clarence Jamison, had been violated by white Mississippi officer Nick McClendon, “Jamison’s claim cannot proceed.”

In a Q&A, Radcliffe Dean and Harvard Law Professor Tomiko Brown-Nagin reflects on the history and relevance of June 19, 1865:  "The antecedent historical event is the Emancipation Proclamation, which [President Abraham] Lincoln had signed in 1863, as the nation entered the third year of a civil war, declaring that persons held as slaves within the rebellious states were henceforth free. ...It is significant, in my view, for making a point that many civil rights scholars and scholars of social change and legal change often have made—and that is that freedom is a constant struggle. There’s no one moment in time that that would stand for the proposition that people are in fact free. It takes action over time. And every generation struggles to achieve freedom anew. But as they were in Texas, the vestiges of bondage and segregation remain intact.

As the world scrambles to respond to the coronavirus pandemic, Harvard experts across the University are trying to help one of the most vulnerable populations survive the crisis. More than 75 faculty members from the Harvard T.H. Chan School of Public Health and Harvard Medical School sent a letter Tuesday to Massachusetts Gov. Charlie Baker urging him to reduce the state’s incarcerated population, a group that could be particularly subject to the rapid spread of COVID-19...On Tuesday, the Massachusetts Supreme Judicial Court heard arguments in a petition by the state’s public defenders, various district attorneys, and the ACLU of Massachusetts, among others, seeking the release of vulnerable inmates and pretrial detainees. Add to those voices that of Tomiko Brown-Nagin, dean of the Radcliffe Institute for Advanced Study, who supports the release of certain inmates and says that the current crisis reflects the history of the nation’s unfair treatment of those too long considered “outcasts.” “There was no sense that they needed to be treated humanely, no guarantee of safe, sanitary conditions, or adequate medical care under the law until the 1960s, in the context of Civil Rights and prisoners’ rights movements,” said Brown-Nagin, who is also the Daniel P.S. Paul Professor of Constitutional Law at Harvard Law School. “It was only in ’60s that the Supreme Court and then the lower courts determined that prisoners do not lose their constitutional rights when they enter these institutions.”

President Lawrence S. Bacow emailed the community on November 21 to announce an “initiative on Harvard and the legacy of slavery,” backed by an initial $5 million in funding and overseen by a faculty committee led by Radcliffe Institute dean Tomiko Brown-Nagin, Paul professor of constitutional law and professor of history. ... Joining Brown-Nagin and Beckert on the presidential committee are: Annette Gordon-Reed, Warren professor of American legal history and professor of history; ... Martha Minow, 300thAnniversary University Professor (former Law School dean);

People from the Harvard community share their favorite spots on campus. ... Samantha Power, Anna Lindh Professor of the Practice of Global Leadership and Public Policy, Harvard Kennedy School, Professor of Practice, Harvard Law School: There is no more peaceful place for me around campus than sitting at the bar at Charlie’s, drinking a pint and eating grilled cheese as I watch the Red Sox game. ... Tomiko Brown-Nagin, Dean, Radcliffe Institute for Advanced Study; Daniel P.S. Paul Professor of Constitutional Law; faculty director, Charles Hamilton Houston Institute for Race & Justice; co-director of Harvard Law School’s Program in Law and History; and professor of history, Faculty of Arts and Sciences, Harvard University: I love the sunken garden in Radcliffe Yard. It’s so beautiful and peaceful and brings to mind happy times.

The Gazette sat down recently for an in-depth interview with four Harvard deans, Tomiko Brown-Nagin, dean of the Radcliffe Institute for Advanced Study, Claudine Gay, Edgerley Family Dean of the Faculty of Arts and Sciences, and Bridget Terry Long, dean of the Graduate School of Education, who were all named to their posts in 2018, and Michelle Williams, who became dean of the T.H. Chan School of Public Health in 2016. The wide-ranging discussion focused on topics that included their personal inspirations, their thoughts on leadership, and their efforts to support one another.

John Hopkins University professor Martha S. Jones spoke about the history of birthright citizenship in the United States at an event held at the Harvard Law School Wednesday. The talk, hosted by the Charles Hamilton Houston Institute for Race and Justice, garnered a crowd of about 75 attendees. Jones, who teaches history, also discussed her book “Birthright Citizens: A History of Race and Rights in Antebellum America,” which she published in May. Dean of the Radcliffe Institute for Advanced Study Tomiko Brown-Nagin introduced Jones and said the topic of the talk is “timely” given President Donald Trump’s announcement last week that he is considering an executive order that would end birthright citizenship in the United States.

A federal court in Boston will receive motions for summary judgment on Friday in a lawsuit involving Harvard College’s admissions process that experts say could reshape the nation’s higher education landscape and undermine efforts to foster diverse student communities at colleges and universities across the country. A trial date has been tentatively set for October...Assessing the 2016 ruling, Tomiko Brown-Nagin, incoming dean of the Radcliffe Institute for Advanced Study and Daniel P.S. Paul Professor of Constitutional Law at Harvard Law School, said, “Once again you had a decision upholding a state’s interest in pursuing educational diversity, and upholding the limited use of holistic admissions.” Yet given the narrow way in which the court has tailored previous rulings, Brown-Nagin added that colleges and universities “certainly should be aware that they need to not only endorse the educational benefits of diversity but show that the way in which they are implementing their mission is consistent with the law, that it’s fair, and that applicants are not being denied opportunities based on race.”

Tomiko Brown-Nagin, a leading historian on law and society as well as an authority on constitutional and education law and policy, has been named dean of Harvard’s Radcliffe Institute for Advanced Study, Harvard President Drew Faust announced today...“I am honored and excited to have the opportunity to lead the Radcliffe Institute, whose mission to bring scholars together across disciplinary and professional boundaries I enthusiastically embrace,” said Brown-Nagin...“Tomiko Brown-Nagin is a brilliant legal historian who is deeply committed to the project of interdisciplinary work. In her time at Harvard Law School, she has been a wonderful teacher of our students, superb leader of the Charles Hamilton Houston Institute, and invaluable institutional contributor,” said John F. Manning, the Morgan and Helen Chu Dean and Professor of Law at HLS.

Tens of thousands of people in Massachusetts participated in the March for Our Lives on Saturday, rallying on the Boston Common against gun violence and for stronger gun control laws. The protesters were energized and determined, but we've also been here before...Tomiko Brown-Nagin is a professor of history and law at Harvard University who studies social movements. She agrees that this march feels like it could lead to real change. She says timing is critical, citing examples like the Civil Rights Movement, and protests of the Vietnam War, which had power in part because of their timing. This movement, she notes, is happening in the run-up to the midterm elections. "The midterm elections give people the opportunity to express their disdain for what some believe is political indifference to the problem of violence by handguns and by assault weapons," Brown-Nagin says.

As the nation faces the frequency of sexual harassment and assault at work, both experts who study the problem and the agency that enforces laws against it say that it’s women at the bottom of the labor market who suffer sexual harassment most often and are least likely to see anything like justice. Their experiences also suggest that the lines between predators and complicit cover artists don’t fall neatly along gender lines — often, the stories include women who overlooked sexual assaults or even facilitated harassment of female workers with less power to fight it...Vinson is a former Washington bank clerk who filed the suit which established the legal concept of the “hostile work environment” and prompted the Supreme Court to declare this a form of discrimination under Title VII of the 1964 Civil Rights Act. Vinson is also one of several black women who brought litigation central to almost every sexual harassment case which reaches a courtroom today, said Tomiko Brown-Nagin, a constitutional law professor at Harvard University and a legal historian.

The Department of Justice has opened a probe into the role of race in Harvard University's admissions policies and is threatening to sue unless Harvard turns over documents by a Dec. 1 deadline, according to correspondence obtained by NPR....In August when the probe was confirmed, legal experts told Carapezza that they were skeptical about the allegations of race-based discrimination: " 'It seems entirely consistent with President Trump's campaign rhetoric,' says Tomiko Brown-Nagin, a constitutional law professor at Harvard. Brown-Nagin points out that the Trump administration's decision to target affirmative action policies comes as racial tensions are rising on many campuses.

Two universities recently convened a symposium to honor the work and influence of the late civil rights lawyer Charles Hamilton Houston. Harvard University’s Charles Hamilton Houston Institute for Race and Justice (CHHRIJ) and Clemson University’s Charles H. Houston Center for the Study of the Black Experience in Education hosted “The Enduring Legacy of Charles Hamilton Houston: 3rd Biennial Symposium” at Harvard Law School last week...“The theme of building bridges to the future follows directly from the work of Charles Hamilton Houston, whose work was always built on establishing a foundation from which one could go further,” said Dr. David Harris, managing director of CHHRIJ. “He did not see school desegregation as an end but a beginning of a pathway forward. Although he would surely be disappointed in the delays we have experienced as a nation in closing the gaps between students of color and White students, he would applaud the efforts of all our panelists to eliminate obstacles and create opportunities.”...“We believe that there is so much unfinished business with regard to educational access,” [Tomiko Brown-Nagin] added. “Students of color still suffer disadvantages: disproportionate punishment, fewer resources, less experienced teachers. By working in the educational space around issues of access and quality, the Houston Institute continues the legacy of its namesake,” she added.

...Tomiko Brown-Nagin, professor of history in the Faculty of Arts and Sciences, Daniel P.S. Paul Professor of Constitutional Law, faculty director of the Charles Hamilton Houston Institute, and co-director of the Program in Law and History at Harvard Law School, grew up in the Deep South in the 1970s and was among the first African-Americans in her area to attend an integrated school. “Many will say desegregation is too costly for black students; there’s social isolation, low expectations, and a lot of other disadvantages,” Brown-Nagin said. “But at bottom the benefits outweigh the costs. Students who attend desegregated schools end up with higher career aspirations and in a higher place in our world.”

Trying to help a high school senior get into his dream school, Laurie Kopp Weingarten called the college to emphasize that the boy should be able to lay claim to the latest, and fuzziest, of all admissions hooks: being a first-generation student...Some public policy experts believe the definition should be narrowed for admissions and financial aid. Tomiko Brown-Nagin, a Harvard law professor, argues that only those most in need should receive special admissions considerations. She wants both parental education and income taken into account, limiting the definition to those whose parents never attended college and are eligible for Pell grants.

Hundreds of friends, family members, and colleagues of Law School professor Charles J. Ogletree Jr. celebrated his lifetime of legal work at an event announcing a professorship endowed in his honor earlier this month. Law School professor David B. Wilkins said the idea of endowing a Law School professorship in Ogletree’s honor came about during a discussion between some of Ogletree’s good friends, including Harvard Corporation members Kenneth I. Chenault and Ted V. Wells...Tomiko Brown-Nagin, a Law School professor and the current faculty director of the Charles Hamilton Houston Institute, also emphasized Ogletree's work regarding sexual harassment..."He also helped raise consciousness about the sexual harassment of working women—an enduring issue for women across a range of industries—through his representation of Professor Anita Hill,” Brown Nagin wrote in an email.

It felt like a family reunion — with 600 relatives. That many friends, former students, colleagues, and well-wishers gathered Monday in a joyful celebration of the life and career of Harvard Law Professor Charles Ogletree, advocate for Civil Rights, author of books on race and justice, and mentor to former President Barack Obama and first lady Michelle Obama...And when John Manning, the Morgan and Helen Chu Dean and Professor of Law at HLS, announced that a group of Ogletree’s friends had established an endowed professorship in his honor, the Charles J. Ogletree Jr. Chair in Race and Criminal Justice, the news brought down the house...The chair was made possible through the generosity of a group of Ogletree’s close friends, said David Wilkins, Lester Kissel Professor of Law. “When the history of Harvard Law School in the 20th century is written, Charles Ogletree’s name will be among the first ones mentioned,” said Wilkins...The panelists told stories to “bring home the Tree-ness of Tree,” as Randall Kennedy, Michael R. Klein Professor of Law, explained...Tomiko Brown-Nagin, Daniel P.S. Paul Professor of Constitutional Law, said, “Throughout his career, Ogletree has embodied law in the service of society, just the same as other great beacons of the American legal profession, men and women like Thurgood Marshall, Constance Baker Motley, and Charles Hamilton Houston.”...Another frequent participant was Obama classmate Kenneth Mack ’91, the Lawrence D. Biele Professor of Law. Mack said he learned about Houston in a Saturday School class. It was a time, he added, when few people knew about the lawyer whom Ogletree deemed one of the 20th century’s greatest legal minds and Civil Rights lawyers.

Thurgood Marshall is revered as a titan of the U.S. Civil Rights Movement, the architect of the landmark court case that ended legal segregation in America’s public schools, and the first African-American Supreme Court justice. Yet for five of his former law clerks gathered Wednesday at Harvard Law School (HLS), he was more than that. For Mark Tushnet, William Nelson Cromwell Professor of Law, Marshall was a messenger of hope and courage to African-Americans who endured the injustices of the Jim Crow South...For Randall Kennedy, Michael R. Klein Professor of Law, who clerked for Marshall in the ’80s, the associate justice was a source of pride, lifting the spirits and the consciousness of black Americans who were treated as second-class citizens...For Martha Minow, former dean of Harvard Law School, Carter Professor of General Jurisprudence, and University Distinguished Service Professor, who also clerked for Marshall, he was the embodiment of a deep commitment to social justice and faith in the power of the rule of law to bring equal rights to all eventually...The panel was moderated by Tomiko Brown-Nagin, Daniel P.S. Paul Professor of Constitutional Law, director of the Charles Hamilton Houston Institute for Race & Justice, and professor of history in the Faculty of Arts and Sciences, and Kenneth Mack, the Lawrence D. Biele Professor of Law...“He was a formidable person in all respects,” recalled another former clerk, William Fisher, WilmerHale Professor of Intellectual Property Law and faculty director of the Berkman Klein Center for Internet & Society...Carol Steiker, Henry J. Friendly Professor of Law and Special Adviser for Public Service, said she developed a lifelong interest in death penalty law during her clerkship with Marshall.

The Trump administration wants to investigate discrimination against Asian-American college applicants. The Justice Department is reopening an investigation into a complaint that was filed against Harvard accusing the Ivy League school of racial discrimination in its admissions practices...Civil rights groups and legal experts are skeptical. “It seems entirely consistent with President Trump’s campaign rhetoric,” says Tomiko Brown-Nagin, a constitutional law professor at Harvard. Brown-Nagin points out that the Trump administration’s decision to target affirmative action policies comes as racial tensions are rising on many campuses.

An interview with Tomiko Brown-Nagin. According to an internal document obtained by our partners at The New York Times, the Department of Justice (DOJ) will shift its priorities away from enforcing anti-discrimination laws on behalf of minorities, and focus instead on cases where white college applicants claim they've been discriminated against. The DOJ's project will focus on "intentional race-based discrimination," a phrase at the heart of affirmative action. The Supreme Court has ruled that race can be used as one factor among many in a “holistic” admissions process, but there are still many cases, related to universities that receive federal funding, where the lines are murkier.

A decades-old settlement in Manhattan federal court serves as a measuring stick for how far Big Law has come in the fight for gender equality...The case, Blank v. Sullivan & Cromwell, was part of a series of lawsuits and complaints filed in the 1970s that put law firms on notice that women expected equal treatment in the legal profession under the relatively new law, Title VII of the 1964 Civil Rights Act, which prohibited employment discrimination based on race, color, religion, sex, and national origin...Blank “was one of the handful of cases that opened up the law firm world to women,” said Tomiko Brown-Nagin, a Harvard Law School professor who studied the case as part of her work on a biography of Constance Baker Motley, the Southern District of New York judge who oversaw it.

Leading civil rights and education groups directed a torrent of criticism at a Malden charter school Friday for disciplining black and biracial students who wear hairstyles that administrators say violate the school’s dress code...The school’s desire to erase economic differences among students — to, in effect, create a level playing field — is reasonable, said Tomiko Brown-Nagin, a Harvard Law School professor who teaches education law and policy. But such policies, she said, can rub up against the equally reasonable imperative to be non-discriminatory. Brown-Nagin said courts have given employers and schools wide discretion in grooming codes but have challenged schools’ discretion when grooming codes infringe on cultural expression. “It strikes me as a laudable goal to try to reduce visible economic disparities among students,” Brown-Nagin said.

Can historians make their work count in the courts without compromising on their academic principles? It’s a question more scholars now have reason to grapple with. Historians say they feel that they are being asked to write or sign amicus briefs in Supreme Court cases more frequently...Ms. [Tomiko] Brown-Nagin is a strong proponent of historians’ playing an active role in court. She says worrying about whether a position in one case will hurt an argument in another "assumes a consistency and coherence in law that is just not there." Furthermore, there’s a growing need for people with a firm grasp of the facts to weigh in on consequential cases, she said. "We’re in an era where there’s skepticism of expertise," Ms. Brown-Nagin said. "It’s important for historians and others to assert their authority and push back."

An op-ed by Tomiko Brown-Nagin. The most successful protest movements in history have been the ones that have set their own agendas. Whether abolitionists, women’s suffrage advocates, or civil rights activists, progressive change movements have gained influence by disrupting politics as usual — not by slavishly aligning themselves with electoral parties. However, electoral politics — in particular, Democrats’ desire to win the next round of elections — is distorting conversations about the significance of the protests that have unfolded since the election of Donald Trump.

As President Barack Obama prepares to leave the Oval Office, we ask experts how the 44th president of the United States will be remembered. Khalil Gibran Muhammad, professor of history, race and public policy at Harvard University; Tomiko Brown-Nagin, the Daniel P.S. Paul professor of constitutional law at Harvard Law; and Jim Demers, a political consultant with The Demers Group in New Hampshire join Under the Radar to discuss how Obama’s policies, popularity and grassroots revolution changed American politics.

[Correction from yesterday's news@law] With the election over, the next big question is: What next? To find out, we reached out to a collection of historians, hoping to get their thoughts on whether The Donald calls to mind, in one way or another, any of the nation’s previous leaders. From Trump’s policies to his rhetoric to his unbridled ambition — did anything about the man remind them of presidents past? And what might that tell us about the future?...“I’d compare Trump to Andrew Jackson because of both men’s populist rhetoric and xenophobic appeals. I also see shades of Richard Nixon in Trump’s ambition and temperament, as revealed on the campaign trail. Fortunately, campaigning for office and governing in a constitutional democracy are distinct enterprises.” Tomiko Brown-Nagin, Daniel P.S. Paul Professor of Constitutional Law and professor of history at Harvard University

After a year that saw Harvard Law School embroiled in debates over race and diversity, Law School Dean Martha L. Minow has launched a new lecture series entitled “Diversity and U.S. Legal History.” The 10-week series, which kicked off Wednesday, is a joint effort on the part of the Dean’s office and Law School professor Mark Tushnet’s reading group, which bears the same title as the series....The lecturers—who include Law School professors Randall L. Kennedy, Tomiko Brown-Nagin, Annette Gordon-Reed, Michael Klarman, and Kenneth W. Mack, Divinity School professor Diana L. Eck—will discuss topics ranging from race in American history, to challenges facing Latinos, the originalist case for reparations, and religious pluralism...Law School professor Joseph William Singer delivered the first talk—“567 Nations: The History of Federal Indian Law”—to a crowded room Wednesday in the school’s student center. Singer recounted the development of colonial and United States law regarding Native Americans from the 18th century to the present, arguing that certain judicial rulings or government actions were unconstitutional.

An op-ed by Tomiko Brown-Nagin. In a stunning win for the University of Texas, the U.S. Supreme Court last week rejected Abigail Fisher's challenge to the university's affirmative action program. The court's decision is a striking reversal of fortune for affirmative action's critics. Just a few years ago, affirmative action appeared doomed. The first time Fisher v. the University of Texas was heard (known as Fisher I), the court in a 7-2 vote vacated an appellate court's decision upholding the very same admissions policy at issue in the matter decided last week (known as Fisher II). The justices ordered more exacting judicial scrutiny of Texas' race-conscious system. Fisher I sent a strong signal to the University of Texas and universities with similar admission systems: Seriously consider "race-neutral" alternatives to affirmative action, or else federal courts would strike down unnecessary – and thus unconstitutional – race-sensitive programs. Entirely consistent with the Roberts court's school desegregation and voting rights decisions, Fisher I signaled that race-conscious decision-making by government had run its course.Against that backdrop, Fisher II was an upset victory for the University of Texas. What accounts for the court's about-face? More pointedly, what caused Justice Kennedy – the court's swing vote and a vocal skeptic of race-conscious state action until now – to change course? The underlying facts and the law shaped the outcome, but race and legacy likely mattered as well.