For an hour this morning, starting at eleven o’clock Eastern Time, the US Supreme Court will interrogate lawyers representing the state of Texas, the federal government, and a young woman who recently graduated from Louisiana State University. That woman, Abigail Noel Fisher, is suing the University of Texas in an attempt to recoup a $50 application fee and a $50 housing deposit that she forfeited when she was denied admission to UT several years ago.
It’s a weird case, and it gets weirder. The Supremes last addressed affirmative action in college admissions — the issue at the heart of today’s case — just nine years ago, with Justice Sandra Day O’Connor fashioning a narrow compromise that allowed campuses to consider race (but not in any quantifiable way) in order to promote campus diversity (but not as redress for past discrimination). Many observers consider it unlikely that Justice Anthony Kennedy will be persuaded to completely abandon that standard, particularly so soon after it was implemented.
Complicating things even further, the newest member of the Court — Elena Kagan, herself a former university dean (Harvard Law, 2003-2009) — won’t be participating, having recused herself due to her involvement in the case during her brief tenure as President Obama’s first Solicitor General.
The Court is deeply divided on the issue of affirmative action right now. In a 2007 opinion Chief Justice Roberts — joined by the Court’s other three staunch conservatives — wrote flatly (and famously) that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That doesn’t leave a lot of wiggle room.
On the other side, Kagan is as noted sitting this one out, and two of her liberal colleagues are on record in support of affirmative action in college admissions. The third, Obama appointee Sonia Sotomayor, hasn’t written on the subject yet as a justice, but she seems an unlikely defector on this issue.
Given all this, and barring any truly bizarre surprises, there are three ways this decision could come down:
First, Justice Kennedy could join with the Court’s four most conservative justices in a decision striking down affirmative action in college admissions entirely. Many observers consider this unlikely, but others note that Kennedy has never cast a vote on the Court in favor of an affirmative action policy.
Second, Kennedy could join with the Court’s conservatives in a decision that preserves campus affirmative action, but limits it even further. Considering the narrow scope in which admissions officials currently operate, and the fact that it was Kennedy himself who established the present framework, this is likely to result in a head-scratcher of a decision.
And third, Kennedy could join with the Court’s three liberals in affirming the status quo, or something similar. This would mean a four-four tie, which would, given the Court’s rules, leave the Texas admissions setup intact without creating new precedent. If that happens, the Court may well call a do-over with a new case — and Kagan’s participation — in the fairly near future.
If I had to bet, I’d bet on number three. But I wouldn’t bet much. (For a deeper analysis of all this from someone who knows much more than I do, check out this detailed analysis from SCOTUSblog. For my own take on the moral and practical issues at stake in the case, read this rant from yesterday.)
Oral arguments are at eleven o’clock this morning. Transcripts should be made available this afternoon, and audio at the end of the week. (The Supreme Court does not permit video recording or livestreaming of oral arguments.) Expect lots of wild guessing and speculation by the end of the day about what the arguments mean (including from me), and look for an actual decision to come down sometime next spring.