Groundhog Day at the Supreme Court. by Linda Greenhouse
Will the Supreme Court Consider Affirmative Action Again?
Abigail Fisher is back. Yes, the Louisiana State University graduate who back in 2008 really, really wanted to go to the University of Texas and who claims that her race (white) kept her out of her home state’s flagship university filed a new Supreme Court appeal last week.
That much was predictable. Ms. Fisher is the recruited face of a powerful social movement that opposes affirmative action in college admissions and that, in an earlier round of litigation more than 20 years ago, took aim at the University of Texas. Fisher v. University of Texas is simply the latest iteration of this crusade, and the appeal is chapter two of the case that was before the Supreme Court two terms ago.
The justices labored on the case then for more than nine months and finally, in June 2013, brought forth a mouse: a brief (a mere 13 pages) and unenthusiastic restatement of current law coupled with a demand that the federal appeals court that had decided the case in the university’s favor go back and take a harder look at what’s going on in Austin. Last summer, after more than a year, the appeals court responded with a 2-to-1 decision reaffirming its earlier conclusion that the university’s modest consideration of race was not only acceptable but “necessary.” In November, the full United States Court of Appeals for the Fifth Circuit voted 10 to 5 against reconsidering the panel’s opinion.
There was no chance that the right-wing network of funders behind the Fisher litigation would let the matter rest there. With the new Fisher v. University of Texas petition having been filed, the next move is up to the justices — or more precisely, to eight justices, since Justice Elena Kagan presumably remains recused on the basis of earlier work she did on the case while serving as the Obama administration’s first solicitor general. What will the court do? Let the latest Fifth Circuit opinion, with its endorsement of race-conscious admissions, stand unreviewed? Or plunge back into the culture wars with a case that sorely tested collegial relations among the justices two years ago and that promises to be at least as challenging a second time around?
The answer won’t come until mid-spring, after the university files its response to the petition; if the court accepts the case, the argument wouldn’t take place until the fall. If the court does add Fisher II to its calendar, it will likely be because the conservative justices are confident that the votes are there this time to take a big chunk out of affirmative action, the only question being how big.
So the really interesting choice is the one the justices will make in the coming weeks between avoidance and re-engagement. Which path they choose will tell us a good deal about the Roberts court’s tolerance for conflict and the limits, if any, of its drive to get the government out of the business of counting people by race — even when the people’s elected representatives deem such counting necessary to protect voting rights or to preserve the hard-won gains of integration.
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