The Other Big Supreme Court Case
As the legal and political worlds await the Supreme Court’s verdict on the constitutionality of the Affordable Care Act, the Justices have another case in the near future which may prove nearly as significant. The health-care case will be decided by June, but next fall the Court will return, perhaps for the last time, to the fraught subject of affirmative action in university admissions.
The facts of the new case are straightforward. Abigail Fisher, a white high-school student in Sugar Land, Texas, was rejected for admission to the University of Texas-Austin. The state requires all students in the top ten per cent of their high-school classes to be admitted to state universities, but students who fall just short of that threshold, like Fisher, are admitted according to a formula; race is one factor in the equation. Fisher’s lawsuit is based on a claim that any consideration of race by a university in admissions violates the Equal Protection Clause of the Fourteenth Amendment.
The case amounts to a direct challenge to the most famous decision authored by Sandra Day O’Connor during her long and consequential service on the Court. In 2003, the Court held, by a vote of five to four, that the University of Michigan Law School could consider race as one factor among many in determining whom to admit. In Grutter v. Bollinger, O’Connor said that diversity was such an important goal in American life that universities could engage in some level of race-consciousness in screening candidates. But O’Connor’s opinion imposed a time limit:
We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
Now, less than a decade after her ruling, the Court appears poised to throw it out.
The changes in the composition of the Court tell much of the story. Samuel A. Alito, Jr., who replaced O’Connor in 2006, has shown no sign of being receptive to any sort of racial preferences for minorities. (Chief Justice John Roberts, Antonin Scalia, and Clarence Thomas appear to feel the same way.) In addition, Justice Elena Kagan—who would be expected to support the university’s admissions practices—has recused herself from the case, presumably because she worked on it as Solicitor General. That leaves only three Democratic appointees—Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor—as likely votes in favor of affirmative action. In all, the possibility of a four-to-four vote, which would leave the Texas program intact, appears to rest with Anthony Kennedy, playing his familiar role as swing Justice.
Kennedy has been hostile to affirmative action—for the most part. He dissented from O’Connor’s majority opinion in Grutter, but he did so in a way that left open the possibility that he might approve some other affirmative action plan. In his dissenting opinion, Kennedy wrote that a racial quota “can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality.” Yet at the same time he said race might also play a role as a “modest factor among many others.” The fate of the Texas admissions program will probably hinge on whether Kennedy thinks it’s “modest” enough.
Abigail Fisher is now a senior at Louisiana State University. The Texas case only concerns admissions practices at public universities, but based on past practices, the courts will likely apply the resulting ruling at private schools as well. The case will also not deal directly with affirmative action in the workplace, but, again, the same standards will likely be applied in that context. The great national experiment with affirmative action began in the Johnson Administration, thrived in the Nixon years, and has survived, embattled but enduring, ever since. We may now be in its final chapter.
In a way, it would not be surprising if the Court sent affirmative action to its doom. No figure in public life, including President Obama, has made a full-throated defense of the practice in years. On an aggressively conservative Court like the current one, that relative silence could well be seen as an invitation to dismantle the practice. In today’s political environment, a decision in favor of Abigail Fisher would generate as much praise as criticism. For the Roberts Court, that makes for a relatively risk-free license to follow its inclinations. Thanks to O’Connor’s opinion, it’s been clear for some time that the days of affirmative action were numbered, but it’s clearer than ever that that number may be dwindling quickly indeed.