Supreme Court Preview: Conservatives Gunning for Affirmative Action

After last term’s blockbuster list of cases, including Chief Justice John Roberts’ decision to uphold Obamacare, the Supreme Court has a quiet year ahead of it — except for one case.  In Fisher v. Texas, the Court will take up the University of Texas’s affirmative action program for admissions.  It is closely modeled on the program upheld by the Court a decade ago in Grutter v. Bollinger, where Justice O’Connor provided the critical fifth vote to form a liberal majority.

The Fourteenth Amendment prohibits the government from using race to classify its citizens, the very evil of the southern system of slavery. The Court has recognized only two exceptions: wartime and, under Grutter, university admissions. It is beyond reason that the Court found that university admissions are so important to society that college bureaucrats must be given the right to engage in the racial engineering of student bodies when no other function of government can — except for national defense in wartime.  

The fact that the Court granted the case suggests that conservative justices on the Court feel they have a good opportunity to overrule Bollinger. They are right to think so, because, since Grutter was handed down in 2003, Justice O’Connor has been replaced by Justice Alito, who is much more conservative and would be expected to overturn the previous ruling.  

And overturn it they should. Grutter is a blemish on our constitutional law. Chief Justice Roberts can begin to repair the reputation of his court by leading a majority to restore the principle of a color-blind Constitution.

  1. KC Mulville

    Aren’t two other important cases coming up? Gay marriage and the religious freedom lawsuits? I thought that the Court would definitely address the marriage case, and might have to address the religious freedom lawsuit, unless Romney wins and decides to gut it. Or am I wrong about those two cases?

  2. Howellis

    I couldn’t agree more that Grutter is a huge mistake, not only constitutionally, but also pragmatically.  Anyone who has read Hunger of Memory: The Education of Richard Rodriguez or Reflections Of An Affirmative Action Baby by Stephen L. Carter should know how harmful affirmative action is to the people who are its supposed beneficiaries.

  3. Howellis

    Am I right that by “wartime” John is referring to the Japanese internment (Korematsu, etc.)?  If so, is that still precedent that the current court, or any modern court, is likely to follow?

  4. ctlaw

    Cases like this are interesting because they don’t have to be reversed on legal grounds.

    They can be distinguished on factual grounds and even procedural ones.

    There is often a questionable factual argument made in such cases. For example, consider arguments that preferences improve educational quality. 

    Given that Roberts may be the deciding vote, I am doubtful of the overturning of precedent.

    Thus rather than overturning the preference cases, it seems the ground is more fertile for just distinguishing them by saying University X has not demonstrated that education would be improved by the preference, let alone by whatever threshold amount is required.

  5. Umbra Fractus

    Grutter probably should be overturned, but Fisher is not the case to do it with. The problem with Affirmative Action is the de facto quota system by which qualified whites and Asians are bypassed solely because someone decided they need more blacks and hispanics. This is not what is going on in Texas. Texas achieves racial and economic diversity through a law which states that any child who finishes in the top 10% of his class gains automatic admission to the state university of his choice. This is a race neutral assist which benefits those who work hard to overcome unfortunate school placement.

    Where race enters into it is in a very few individual cases where it may be considered as part of a combination of factors which might make the student’s experience worth having in a classroom: The example given to me was a black conservative, but it could also give a boost to a white kid who went to a predominantly black school.

    Unlike Michigan in Grutter, Texas actually is interested in intellectual diversity.