Why affirmative action is in serious trouble next year
So, if you're not aware an affirmative action case is going to be heard next year. Baring a change in the court makeup, it looks like affirmative action is in serious trouble.
The last supreme court case that heard an issue similar to this was Grutter vs. Bollinger.
The decision was 5-4 in favor, but the most important element is that Kennedy, Scalia, and Thomas all dissented. Given the similarities between this case and the previous case, it appears highly likely that all 3 will be against affirmative action again. The key name there is Kennedy, because despite the perception of Kennedy as a swing vote, he has consistently voted against affirmative action in every case he has seen.
I'd suspect that Samuel Alito will also be against affirmative action, based on his prior voting record.
This seems bad in of itself for affirmative action, but the biggest problem is this is going to be a 8 person supreme court, because Elena Kagan will be recusing herself from the case.
This essentially means that the fate of the case rests with John Roberts. In the event of a 4-4 tie (which would mean John Roberts would be siding with affirmative action), the lower court ruling is upheld, but not signaled to be precedent. Since the lower court ruled for affirmative action, there are at least 4 judges who agreed to take this case. The only reason they would do this would be if those justices were hoping to overturn a previous precedent, given affirmative action of this type has been ruled constitutional before.
That means that only hope affirmative action has to survive is a narrow ruling or a 4-4 tie (completely dependent on John Roberts, as again Kennedy is almost certainly not going to vote for affirmative action).
The fate of affirmative action therefore rests on the shoulder of John Roberts. The big problem is that the last time John Roberts voted on affirmative action, he voted to uphold a state ban on affirmative action.
It seems highly likely there is going to be a 5-3 ruling against affirmative action next year. It is possible that Roberts would hold the dual position that a state can ban affirmative action and that a university operating in a state without such a ban can use it, but that seems unlikely to me. Especially given he is the guy who said "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.". I don't suspect based on previous statement of his limited prior voting record on the subject, that John Roberts will vote to uphold affirmative action.
It seems unlikely the supreme court is going to uphold the affirmative action policy of the school as it is. Based on previous voting records, I think it will either be a narrow ruling against that strikes down some facet of the policy or a broader ruling banning affirmative action in university admission. The broadest possible ruling is a blanket ban on affirmative even beyond the education sector, but I'm not sure if the judges would address the topic that broadly in this case. It is possible, but I think unlikely.
Where would this leave affirmative action in university admissions? Assuming we have a Democratic president, then the best bet would be replacing Scalia as he is 79. However, how long Scalia is able to hold on is an open question. Given his ideological stances, I think the only thing that could get him out of office during a Democratic presidency is serious disability or death. John Paul Stevens held onto into his 90's.
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