Five Questions Answered About the Supreme Court and Affirmative Action

Didn’t we just go through this? Eliza Shapiro speaks with the experts to break down the case for and against affirmative action, which was argued before the Supreme Court Wednesday.

10.10.12 11:00 PM ET

So the Supreme Court is considering a case on affirmative action?

The Supreme Court is back in action this month, hearing arguments Wednesday in Fisher v. University of Texas at Austin, which challenges the university’s admissions policy.

In 2008, Abigail Fisher, a white woman from Texas, applied for admission as a first-year student at UT and was denied. Fisher is arguing that she was denied because of her race, and that UT’s affirmative-action policies created a system that unfairly rejected her. UT’s policy is a hybrid between the state’s so-called 10 percent plan—which automatically admits high-school graduates in the top 10 percent of their grade—and the admissions office’s consideration of race as one of many factors in creating each year’s freshman class.

Fisher recently graduated from Louisiana State University, leading some legal experts to argue that the case could be dismissed as moot. The court didn’t seem too interested in that argument Wednesday morning.

But didn’t the Supreme Court just rule on affirmative action?

In 2003’s Grutter v. Bollinger, the court gave a major victory to affirmative action when it upheld the admissions policies of the University of Michigan Law School. In that case the court reflected on the last major affirmative-action ruling 25 years prior, and suggested that there would no longer be a need for race-conscious admissions policies in 25 years.

If you’re wondering why the Court is revisiting the issue less than a decade later, one obvious answer is that the composition of the court has changed in a material way since 2003—Chief Justice William Rehnquist and Justices Sandra Day O’Connor, David Souter, and John Paul Stevens have been replaced by Chief Justice John Roberts and Justices Samuel Alito, Sonia Sotomayor, and Elena Kagan. All the replacements have been the rough political equivalent of their predecessors, save for one: Justice O’Connor wrote the majority opinion in Grutter, but her replacement, Justice Alito, has been clear that he’s not a fan.

Theodore Shaw, a professor at Columbia Law School who helped create Michigan’s affirmative-action policy, said “there’s no simple good reason” why affirmative action is back on the docket, but believes the new conservative wing of the Court was pushing for a revisit of Grutter.

“The court is an institution and it’s not supposed to revisit cases simply because the court personnel changes,” Shaw said.

Fisher’s case has not fared particularly well in lower courts—she lost in both the U.S. District Court and at the Fifth Circuit Court of Appeals—but that is not necessarily indicative of how the Supreme Court will rule. At the Fifth Circuit, the three-judge panel ruled 2–1 in favor of UT’s policies, and Fisher’s legal team was denied a request for the case to be reconsidered by the Fifth Circuit Court.

How is Fisher different from Grutter? What’s really at stake here?

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The cases are about two different affirmative action policies at two different institutions—experts point to UT’s 10-percent plan as the main policy difference between the two schools—but both cases are similar in that they consider whether universities and colleges can use race as a factor in admissions. That means that what’s at stake in Fisher is the same as what was at stake in Grutter—that is, the constitutionality of affirmative action.

During questioning on Wednesday, Justice Sotomayor summarized the case by asking “at what point—when—do we stop deferring to the university’s judgment that race is still necessary? That’s the bottom line of this case.”

What’s going to happen?

The court will most likely rule on the case near the end of its term next spring.

In the meantime, The New York Times’ Adam Liptak has broken down the possible options.

First, and least likely, the court could dismiss the case on the grounds that Fisher did not suffer damages as a result of being rejected from UT. Second, it could uphold UT’s affirmative-action policies and thus, essentially, Grutter. Third, it could strike down UT’s policies and overrule Grutter, which would mean affirmative action at public and private universities alike would be ruled unconstitutional.

Shaw called the third possibility a “worst-case scenario” for affirmative-action supporters, and noted that affirmative action could still be significantly altered even if the Supreme Court falls short of overturning Gutter and instead amends it or cuts back on its previous ruling.

There’s one last possible outcome—since Justice Kagan has recused herself after working on the case during her tenure as solicitor general, the court could tie 4–4, meaning that UT’s policies would be upheld.

Kagan’s recusal means the Fisher ruling depends that much more on the vote of Justice Anthony Kennedy, who has become the most common swing voter on the court. That’s bad news for affirmative-action supporters, Shaw said, since Kennedy “has voted to strike down every race-conscious measure that has come before him.

“If he holds true to what we’ve seen in the past, the most likely outcome is that he will vote to strike down the UT admissions plan but theoretically will leave something in place that allows UT to pursue diversity efforts that cut down on Grutter v. Bollinger without explicitly overturning it,” Shaw said.

What does this all mean for me?

That depends on how the court rules and how that ruling is translated at colleges and universities across the country. There’s no doubt that if UT’s policies are found unconstitutional and part or all of Grutter is overturned, affirmative action as we’ve known it for the last 50 years will change dramatically. One major problem, said Sanford Levinson, professor of law at the University of Texas Law School, is that the justices “have no better predictions as to what the consequences would be [of striking down affirmative action] than you or I.” Levinson said that an integrated America without some form of affirmative action is uncharted territory, and so it’s difficult to speculate on what various rulings might mean.

Shaw and Levinson both said that if Fisher wins her case and Grutter is partially or entirely overturned, they’d expect to see fewer minority students at top institutions across the country.