Affirmative action is alive but ailing, the idea of “critical mass” to measure racial diversity is in very critical condition, and a nine-year-old precedent may have to be reshaped in order to survive. Those were the dominant impressions at the close of a one-hour, nineteen-minute argument in the Supreme Court Wednesday. There is almost no doubt that the University of Texas’s affirmative action plan for admitting its freshman classes is in trouble with four Justices, but has at least qualified support from three others. The one most in doubt among the eight taking part: Justice Anthony M. Kennedy. He wanted to be convinced that the program does not use race at all costs, and it appeared that he was not.
At the center of the discussion was the Court’s last major ruling on affirmative action in college admissions – Grutter v. Bollinger, in 2003. There was almost no one at the hearing thinking that Grutter would be flatly overruled, but Justice Sonia Sotomayor wondered what was on almost everybody’s mind: would it be “gutted”? At a minimum, it seemed, it would have to be rewritten, and its central point — that a university can make some limited use of race until it achieves a “critical mass” in a diverse student body — may well be cast aside. Chief Justice John G. Roberts, Jr., led a determined assault on the concept, finding it far too indefinite, and the idea had no fervent champions.
As the arguments turned out, the Court seemed unwilling to accept as conclusive the academic judgment that university officials make when they fashion admission plans that take some account, however limited, of the race of the applicants. The Grutter decision was famous for its deference to universities’ calculation of the educational benefits of racial diversity, but that now appears to be a dated and perhaps even discredited approach. Judges, it appeared, will assume a more dominant role in weighing the constitutionality of any use of race.
Across the country, foes of affirmative action — especially as it is practiced in public colleges and universities — had pinned their hopes on the challenge of the young white woman, Abigail Noel Fisher, who did not get into the flagship Texas university and insisted that it was because of her race. But Fisher’s lawyer at the lectern, Washington attorney Bert R. Rein, was notably cautious in his verbal challenge to the Grutter precedent, and said explicitly that it was not his aim to have it overruled in toto. He was almost finished when Sotomayor told him that, while he did not want it overruled, “you just want to gut it.” He said he did not want that, but his argument was a plea to sharply pare it down.
There was enough talk about whether Ms. Fisher should have been allowed to file her lawsuit to leave the impression that the Justices may want to hold that issue in reserve, in case they cannot reach a majority on a definitive outcome in the case. Should the Court be on the verge of a four-to-four split, as seemed on Wednesday to be an even more realistic result, it may well choose instead to find that Ms. Fisher lacked “standing” to sue, and end the case, looking to some future case to take up again the fate of Grutter and affirmative action.
Justice Antonin Scalia was the one most determined to keep Ms. Fisher’s case intact, saying that the Court had never required an affirmative action challenger to show that it would have succeeded in getting into a program or getting a contract in order to be allowed to sue to complain about unconstitutionality. In any event, attorney Rein argued that Ms. Fisher had suffered a distinct injury — a “constitutional injury” in not being treated equally — and that should be enough to give her “standing.”
For all of the hype that preceded this argument, with fear and loathing among supporters of affirmative action, the entire seventy-nine minutes of exchanges were subdued, sometimes highly technical, and had more of the flavor of a seminar than a grand constitutional confrontation. U.S. Solicitor General Donald B. Verrilli, Jr., in his brief stint at the lectern, essayed some soaring rhetoric about the virtues of a multicultural society, but it seemed a bit too calculated. There was no bombast, even from Justice Scalia, and the only sign of testy impatience came from the Chief Justice as he bore down on the university’s attorney, Gregory G. Garre, to give some substance to the “critical mass” idea that would tell a court when the university had made enough use of race, and could then stop.
Garre and Verrilli both refused to be pinned down on what “critical mass” really means in an academic setting, and fell back on arguments that amounted to a plea that university officials know it when they see it, and can be trusted not to overdo it.
What was almost immediately evident in the argument was that the outcome almost certainly will lie in Justice Kennedy’s choice of how to vote. The Chief Justice, Scalia, and Justice Samuel A. Alito, Jr., were decidedly hostile to the Texas program. Justice Clarence Thomas, who said nothing, as usual, was a dissenter in Grutter, and thus probably can be counted on to disapprove of the Texas approach. Justices Stephen G. Breyer and Ruth Bader Ginsburg, both in the majority in Grutter, seemed unimpressed with the challenge to it, although Ginsburg seemed somewhat less sympathetic to Texas than Breyer. In fact, Breyer was somewhat dogged in pressing attorney Rein on whether he wanted Grutter overruled. Justice Sotomayor, early and often, left no doubt that she would have joined Grutter had she been on the Court then.
With Justice Elena Kagan on the sidelines (because of a prior involvement with it when she was in the Justice Department), those leanings would add up to four to three against the Texas plan. Justice Kennedy could put the case away if he joined the defenders of Grutter, because a four-to-four split would mean that the Texas plan had been upheld — in a summary order without an opinion affirming the Fifth Circuit Court’s embrace of the plan. He could scuttle, or at least undermine, the Texas plan by voting with the more conservative members of the Court who seemed ready (or were assumed to be) to reverse the Fifth Circuit.