by Mitch Kokai
Senior Political Analyst, John Locke Foundation
It’s hard to imagine the U.S. Supreme Court generating as many headlines during its upcoming term as in the last term, when the ObamaCare case attracted such widespread attention.
As the Court reconvenes for the 2012 term this week, it is preparing to reconsider the constitutionality of affirmative action in university admissions. By term’s end, next June, it could weigh in on gay marriage as well. How the Court decides will determine how these and other important issues go — and with three justices over 75, how the election goes could determine how the Court goes in future years.
The Court last considered university affirmative action in 2003, when Justice Sandra Day O’Connor led a 5–4 majority in Grutter v. Bollinger, approving the University of Michigan’s use of race as a plus factor for law-school admission. Such limited use of race was permissible if it was done for diversity purposes, O’Connor ruled, particularly if there were few viable alternatives. Though intended to limit race-based university admissions, Grutter instead gave schools a road map, detailing what they would have to say and do to survive judicial review.
But the University of Texas may have trouble defending its affirmative-action policies, Grutter notwithstanding. In 1995 a federal court forced UT to abandon race-based affirmative action, prompting adoption of the “10 percent plan,” which guaranteed admission to the top 10 percent of graduates from any high school in the state. This plan increased racial diversity at UT, but not enough to satisfy administrators. So when Grutter was decided, UT started openly using race as a factor again, prompting this latest suit. The plaintiffs claim that UT puts more emphasis on race than Grutter allows, but they would also be happy for the Court to reconsider Grutter and bar consideration of race altogether. Such an outcome is a real possibility, particularly now that Justice O’Connor is no longer on the Court and Justice Kagan has recused herself, but it’s also possible the Court could strike down the UT policy while leaving existing doctrinal standards in place.
Follow the “readers” link above for Adler’s description of other high-profile cases coming up this year.