So the Supreme Court’s oral arguments in the case of Fisher v. University of Texas at Austin have ended pretty much where they started, with Justice Kennedy getting to decide whether to pare back or reverse a highly qualified 2003 Court approval of the use of race as one of multiple factors in college admissions. Lyle Denniston at SCOTUSblog seems to think some further restriction in race-conscious admissions policies is very likely, though a full-fledged abolition of them is a dicier proposition:
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.
But another of Denniston’s reactions interested me a lot, preoccupied as I am with the potential political exploitation of this case by the GOP:
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.
Doesn’t sound like a good foundation for a sudden GOP attack on the Obama administration for favoring “reverse discrimination,” but then again, we’re talking about people who turned a tedious HHS circular on TANF waivers into “abolishing work requirements for welfare.”
