Will the Supreme Court End Affirmative Action? Not So Fast.
When the Supreme Court agreed to hear a case challenging affirmative action, many saw evidence that it wants to end the practice for good. Not so fast, writes Dan Slater.
When the Supreme Court announced this week that it would hear a case involving race-conscious admissions at the University of Texas, many in the legal community suspected it was high noon for affirmative action in American higher education.
It appeared that the court’s newly emboldened conservative bloc was set to take a whack at a landmark 2003 case, Grutter v. Bollinger, in which a slightly less conservative court had ruled that race could be considered as a factor in admissions at public universities.
At that time, Justice Sandra Day O’Connor, who wrote for the majority in Grutter, noted that minority applicants with high grades and test scores had increased in the previous several decades. “We expect that 25 years from now,” she wrote, “the use of racial preferences will no longer be necessary to further the interest approved today.”
Some saw that view as the end of the matter for the time being, until last Tuesday, when the court agreed to hear a case brought by Abigail Noel Fisher, who claims the University of Texas denied her admission because she is white.
The court’s decision to take the case raised red flags throughout the legal blogosphere, in part because it’s 2012, not 2028. (Apparently, Justice O’Connor’s timeframe was not a concern to the current justices.) But affirmative-action supporters were also alarmed because Fisher v. University of Texas is beset by procedural roadblocks that led many legal observers to predict it might never get a hearing at the high court.
“The major role of the court is to settle conflicts among the lower courts,” said Scott Gant, a litigator at Boies, Schiller & Flexner who also teaches constitutional law at Georgetown. “But here it’s not clear there’s a split in the lower courts. The fact that they took it anyway strongly suggests they want to revisit their precedent in Grutter.”
For starters, Fisher—who brought the suit in 2008—is set to graduate from Louisiana State University in May. By the time the court hears oral arguments in the fall, she will no longer be able to apply to UT as an undergraduate, and could therefore lack the personal stake required to keep her case alive. If so, her only remaining demand would be for a refund of the $50 application fee and $50 housing deposit she paid. UT claims it could simply refund Fisher the $100 and make the case moot—a position some legal experts believe could hold water.
In other words, the court’s taking on of Fisher suggests that the justices are so impatient to roll back affirmative action that they don’t care what the case looks like.
The winds of change at One First Street would seem to support this notion. Since Grutter was decided, the court has experienced nearly 50 percent turnover, and the new justices are either roughly the same as or more conservative than their predecessors.
But the court’s magic number is, as ever, five: that’s how many justices you need to win.