mods, please move to political instead of deleting.http://www.politico.com/news/stories/1012/82265.html#ixzz28vW4yMqrSupreme Court showdown on affirmative action
By JOSH GERSTEIN | 10/10/12 3:18 PM EDT
The Supreme Court seems poised to issue a ruling that could pare back affirmative action programs in higher education, judging by comments justices made during a Wednesday session on a case challenging racial preferences at the University of Texas.
It appeared clear from the justices’ often-pointed questions during an extended hour-and-20-minutes of oral arguments that the survival of the Texas program and others like it depends on the vote of Justice Anthony Kennedy.
Three of the court’s four most conservative justices, Chief Justice John Roberts, Justice Antonin Scalia and Justice Samuel Alito, were clearly hostile to the Texas plan. Justice Clarence Thomas did not speak from the bench Wednesday, as is his custom, but he’s previously indicated opposition to such programs.
The court’s liberal wing was more receptive to the University of Texas program and to the idea of deferring to the judgment of educators. However, the court’s liberals are down one for the Texas case: Justice Elena Kagan recused herself because as solicitor general she approved a brief backing the university.
If the conservative justices vote together, they could nix the Texas program and effectively restructure — or even end — affirmative action in higher education. If not, the case is unlikely to set any precedent, though the court could still kill the Texas system.
Kennedy sounded largely skeptical about the Texas program,
which uses race to boost the admission of African Americans and Latinos, but he gave no indication he is inclined to join a ruling that would forbid all use of race in college admissions at state-run schools.
Justice Sonia Sotomayor, the court’s only Hispanic, emerged as the most vocal defender of the Texas program on the court.
Former Justice Sandra Day O’Connor, author of the court’s 2003 ruling that upheld affirmative action, was in the courtroom audience for most of Wednesday’s arguments on the Texas case. In the earlier case, Grutter v. Bollinger, O’Connor upheld a University Michigan Law School affirmative action plan but suggested such programs would no longer be necessary in 25 years.
“I know time flies, but there’s no denying those years have [not] passed,” Breyer quipped at the outset of the arguments, suggesting that conservatives are intent on overturning Grutter.
Alito, who replaced O’Connor in 2006, offered some of the strongest criticism of the Texas program.
He seemed particularly disturbed that it admits well-to-do minorities who don’t gain admission through a Texas law that grants a place at the university to everyone who graduates in the top 10 percent of a public high school.After the lawyer for the university, Greg Garre, said the program admits minorities who “succeed in an integrated environment” to “break down racial barriers,” Alito jumped in.
“I thought the whole point of affirmative action was to help students coming from underprivileged backgrounds,” he said. He asked if the child of an African American or Latino professional deserves a “leg up” over an Asian student “of average background.”Garre said the point of the program is to ensure that minorities of different backgrounds are part of the student body.“What you’re saying is race counts above all?” Kennedy chimed in“No, it’s not race. It’s just the opposite,” Garre insisted.
Roberts questioned how the racial statistics and preferences work in an era when more and more Americans are of mixed racial or ethnic background. “Would it violate the honor code for a person who’s one-eighth Hispanic” to list himself as a Latino? the chief justice asked.
Garre said the university leaves it to students to indicate their ethnic or racial background, or to decline to do so.
Much of the discussion turned on whether Texas had achieved a “critical mass” of minority students, a term that comes from the Grutter ruling.Neither Garre nor the lawyer challenging Texas’ program, Bert Rein, seemed eager to define the term.
Garre said a critical mass would allow racial minorities to feel less isolated and more able to speak out, but he said it didn’t mean matching the number of minorities in the Texas population.
After Rein suggested that adequate diversity had been achieved at the university, Sotomayor asked him
what percentage would be enough.“It’s not our burden to establish the number,” he said.
The Obama administration’s lawyer, Solicitor General Donald Verrilli, asked the court to uphold the Texas plan. But he also declined to put a number on how many underrepresented minorities were enough to create “critical mass.”
“I’m hearing a lot about what it is not. I’d like to know what it is,” Roberts said.
“Maybe we should stop calling it critical mass,” Scalia said. “Call it a cloud or something.”
Sotomayor suggested that universities were caught in a kind of Catch-22: If they give too much weight to race, they’d be accused of unfairness, and if they give only a little weight, the program would be deemed so minor as to be unworthy of harming applicants who were rejected.
The case before the court was brought by Abigail Fisher, a white student who was denied admission in 2008. She attended Louisiana State University and recently graduated.
There remains an outside chance the court might not resolve the case on the merits. The court’s liberal justices suggested Fisher might not have standing to bring her lawsuit because she’s no longer seeking admission to the school and asked for no specific damages beyond the $100 application fee. The court’s conservatives didn’t seem to give much weight to that argument.
