What will they do for an encore? The often staid Supreme Court closed its 2011-2012 term in late June with a nail-biting final day decision on the Affordable Care Act. The opinion surprised almost everyone, including four of the Court’s five conservative justices, as Chief Justice John Roberts, for the first time ever in a 5-4 decision, joined the liberal wing of the Court to uphold the bulk of the Affordable Care Act. Three days earlier, the Court struck down most of Arizona’s anti-immigrant law, again surprising many observers and disappointing many conservatives.
This term, which opens Monday, October 1, promises to be almost as controversial. Whether the results will be as happily surprising for liberals is a much tougher question. Where the Court’s biggest cases last term dealt with the relative powers of the federal and state governments, this term they focus on equality. The Court has already agreed to hear a challenge to the University of Texas’s affirmative action program. It is also very likely to hear a constitutional challenge to a central provision of the 1965 Voting Rights Act, as well as at least one and possibly two cases concerning same-sex marriage (issues I will discuss in subsequent blog posts).
At stake in all of these cases is the meaning of the Constitution’s guarantee of equal protection of the law, a right that the nation has struggled over since its inception and that still means radically different things to different people. Does equality allow a university to take racial diversity into account in its admissions process? Does a commitment to equal voting rights justify making certain states and counties seek the Justice Department’s approval of any change in their voting laws, as the Voting Rights Act has required since its enactment in 1965? And perhaps most controversially of all, does equality demand that Congress, or the states, treat same-sex marriages the same as marriages between a man and a woman?
As with so much else before the Court, the answers to all of these questions are likely to lie with Justice Anthony Kennedy—although, as Roberts showed last term, other members of the Court may surprise us. In the race cases, the outcome is also likely to turn on what kind of conservatives the Court’s five right-wing justices actually are—Burkean guardians of tradition and the status quo, or radical reconstructionists. A restrained conservative would strive to let matters concerning racial justice stand where they have come to rest after years of controversy. Such an approach would allow a limited consideration of race in university admissions and permit Congress to act prophylactically to safeguard the all-important right to vote. In siding with the liberal justices to dismiss the challenge to the Affordable Care Act, Roberts prevented the Court from making a truly radical decision. But that doesn’t mean he’ll do so again. And five radical conservatives could well bring an end to both affirmative action and the central safeguard of the Voting Rights Act in the name of a colorblind (and historically blinkered) commitment to equality.
In the gay marriage cases, the outcome is likely to turn on whether the Court’s swing justices want to be on the right side of history. There is little question that in the next generation or so, same-sex marriage will be widely accepted, and discrimination on the basis of sexual orientation will be generally viewed as suspect – much as race and sex-based discrimination has come to be viewed today. On the one hand, the liberal justices and Justice Kennedy are not likely to want to stand in the way of such change; on the other hand, all of the justices will almost certainly be sensitive to the fact that many states are simply not yet ready to recognize same-sex marriage.
Predicting the outcome of the affirmative action case is difficult. In twenty-four years on the Court, Justice Kennedy has never voted in favor of a racial preference. However, while he dissented nine years ago when the Court upheld the University of Michigan Law School’s affirmative action program in Grutter v. Bollinger, his dissent endorsed Justice Lewis Powell’s 1978 opinion in Regents of the University of California v. Bakke, which ruled that universities could take race into account as one factor among many in order to achieve diversity under some circumstances.
The program at issue now was adopted by the University of Texas at Austin after a federal appeals court declared Texas’s race-based affirmative action program unconstitutional in 1996. The state’s initial response was to adopt a “top 10 percent plan,” which automatically admits the top 10 percent of every Texas high school. Because minorities in Texas, as in much of the rest of the country, are socially segregated and tend to attend different schools than whites, this strategy yielded a not insignificant black and Hispanic student population. But the university ultimately concluded that the 10 percent strategy did not sufficiently serve its academic interest in a diverse student body. Texas found that by admitting the top 10 percent from racially segregated schools, it achieved some minority representation, but did not achieve diversity within racial and ethnic groups. A black student who attended an integrated school and was in the top 15 percent of his class, for example, might well bring a very different perspective to the school than a student from a racially segregated inner city school. If one point of diversity is to break down stereotypes, it is important to look for diversity within as well as across racial groups.
Accordingly, the Texas admissions program also considers race, but only as one factor among many in an individualized, holistic review of applicants’ entire files. Race is, as the university puts it, “a factor of a factor of a factor,” considered as part of a range of diversity considerations that are then considered along with a multitude of other factors. At the point of actual admission, the admissions officers don’t even know the race of those they are selecting. But the program does yield more black and Hispanic students, and often from different backgrounds than those admitted through the 10 percent plan.
Abigail Fisher, a white student not in the top 10 percent of her high school who was denied admission, argues that she was denied equal treatment because she was white. In the Supreme Court, her lawyers maintain that the Texas program should be struck down because it seeks to achieve proportional racial representation; because it seeks to make every classroom, no matter how small, diverse; and because the lower courts did not subject the program to strict scrutiny, but deferred to the university.
If any of these charges were true, the challenge would almost certainly be upheld and Texas would lose. But they are all false. The Texas program does not seek any particular racial proportion or level of diversity in every classroom. The lower court, in upholding the program, did apply strict scrutiny and found that, like the Michigan plan upheld by the Supreme Court nine years ago, Texas’s program is adequately limited because it considers race as only one factor among many in a review that takes all of an individual’s circumstances into account; it does not pursue any racial quotas; and it seeks to further the compelling interest of diversity in a constitutionally permissible way. A fair reading of the program and of the lower court’s ruling should lead to the program being upheld.
At the same time, the Texas case highlights the contradiction at the core of the Supreme Court’s approach to affirmative action. It has ruled that any consideration of race, even to advantage historically disadvantaged groups, must trigger “strict scrutiny,” which requires the state to demonstrate the its consideration of race is “narrowly tailored” to further a “compelling state interest.” At the same time, the Court has held that educational diversity is a compelling state interest. But diversity is itself a matter of complicated and nuanced academic judgment, and the Court has recognized that it is ill-suited to second guess universities on defining what educational diversity demands. But how does one test whether an affirmative action program is “narrowly tailored” to an end that is itself somewhat elusive?
Texas’s challengers argue that the top 10 percent plan achieves sufficient diversity all by itself, and therefore it’s not permissible to consider race in the remainder of the admissions program. But for the Supreme Court to accept that argument, it would have to say that it knows better than a university when academic diversity has been reached. Even this Court, as hostile to racial preferences as it is, seems unlikely to do that. And if the Court is not going to second-guess a university on a good-faith judgment about diversity, all it can realistically do is require—as it did in the Michigan case—that race be only one factor, that there be no quotas, and the like. Texas easily meets that test. Its program is largely modeled on the Michigan program, minus the aspects of the Michigan program that Justice Kennedy, in dissent, found problematic. (Kennedy viewed the Michigan program as treating race as a predominant factor in admissions and as effectively seeking a quota.)
Fisher’s lawyers seem to sense that they cannot win under existing case law. So they conclude their brief with an invitation to overturn the Michigan case and end affirmative action altogether. When the Court upheld affirmative action nine years ago, Justice Sandra Day O’Connor speculated that in 25 years, consideration of race may no longer be warranted, even for diversity’s sake. Although 25 years have not yet passed, the challengers are counting on the fact that O’Connor was replaced by Justice Samuel Alito, giving them five votes against affirmative action. But what they are not counting on is Justice Kennedy’s endorsement, at least in principle, of the sort of modest affirmative action plan Texas has devised, nor the force of precedent. For the Court to reverse Grutter after only nine years would upend settled expectations and re-segregate many of the nation’s preeminent institutions of higher learning. It will be a true test of how radical the Court’s conservative justices truly are.