As my colleague Jamelle Bouie noted yesterday, the Supreme Court agreed to hear Fisher v. UT Austin, a challenge to the use of affirmative action for undergraduate admissions at the University of Texas. I wish I could make a case for more optimism, but I have to agree with the conventional wisdom that Grutter v. Bollinger, the case that upheld that affirmative action was allowed in higher education so long as it was done to promote diversity, is likely to be overruled and the use of affirmative action in higher education therefore made flatly unconstitutional.
To start with the less-bad news first, readers may find it ominous that Justice Elena Kagan has recused herself from the case. But this means less than it might appear at first. The 5th Circuit opinion the Supreme Court is reviewing upheld the constitutionality of the program. Because of this, if the Supreme Court deadlocked 4-4, the program would be sustained and Grutter would remain good law. While the best outcome would be a majority opinion clearly re-affirming Bollinger, a tie would be acceptable.
The bad news is that Kagan's recusal probably doesn't matter because her vote will be irrelevant. Everything points to there being five votes to overrule Grutter. Antonin Scalia and Clarence Thomas are sure votes—not only did they dissent in Grutter, they have consistently held that all affirmative action programs are unconstitutional (even though this is flagrantly inconsistent with the "originalism" they claim guides their interpretation of the Constitution). Samuel Alito and John Roberts were not on the Court when Grutter was decided in 2003, but the 2007 Parents Involved ruling, authored by Roberts and joined by Alito, is an ominous sign. Chief Justice Roberts's Young Republican debate society koan "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race" strongly suggests that the two George W. Bush appointees will adhere to the Scalia/Thomas absolutist position.
If you squint really hard, you might see a ray of hope in Anthony Kennedy. He dissented in Grutter, which would seem to settle the question. But in Parents Involved, given the opprtunity to provide five clear votes for the position that affirmative action programs always violate the 14th Amendment he didn't quite go all the way, arguing that there might be some narrow cases in which affirmative action might be constitutionally permissible. Since the primary UT system uses a proxy measure for race—granting admission to the top 10 percent of every high school class in Texas rather than explicitly considering a student's race per se—Kennedy might see the case as distinguishable from Grutter (and Gratz, in which Kennedy joined an opinion that struck down the University of Michigan's undergraduate affirmative action program). The Supreme Court could write a narrow opinion holding that the supplemental pool for students that Abigail Noel Fisher was part of after missing the 10 percent cutoff (and which does consider race) violates the Constitution without considering the broader UT admissions system. Doing so may permit ruling in favor of Fisher without seeing a need to overrule Grutter.
Having said this, if Kennedy isn't as certain a vote to strike down the UT program as the other four Republican appointees, he's close. The question is not so much whether the Court will rule against the UT as how it will do so. I'm generally not a big fan of "judicial minimalism," but if the Court just ruled against the UT without overruling Grutter explicitly, I would consider that the best outcome that could be hoped for. My guess is that the Supreme Court is taking the case so it can overrule Grutter and hold that affirmative action programs are never constitutional.
For the reasons that Justice Thurgood Marshall cited in his opinion in the landmark affirmative action case Regents of UC v. Bakke, I think that the equation of racial classifications intended to uphold a racial caste system with racial classifications seeking to ensure that all people receive a meaningful equal opportunity in the wake of the still-present effects of this caste system is absurd. But this seems to be the direction in which the Supreme Court is taking the country.
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