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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 They are right to think so, because, since Grutter was handed down in 2003, Justice O’Connor has been replaced by Justice Alito, who is much more conservative and would be expected to overturn the previous ruling.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.