WASHINGTON -- Chief Justice John Roberts may have switched his vote to join the Supreme Court's liberals in last term's blockbuster health care case, but on Wednesday morning he proved that he remains a rock-ribbed conservative when it comes to affirmative action.
With retired Justice Sandra Day O'Connor looking on from the audience, Roberts and his fellow conservative justices savaged the rationale she put forward in her landmark 2003 opinion upholding race-conscious admissions practices. Although the conservatives did not have the numbers to prevail nine years ago, they may very well have them in the current challenge to the University of Texas at Austin's affirmative action program.
The 2003 decision, Grutter v. Bollinger, upheld by a 5-4 vote the ability of university admissions officers to consider an applicant's race as one factor among many in their efforts to achieve a critical mass of diversity in the entering class.
The "critical mass" concept inspired the most contempt from the Supreme Court's conservatives during oral argument Wednesday morning in Fisher v. University of Texas. Former Solicitor General Gregory Garre, representing the university and relying upon the Grutter decision's own language, said that critical mass is determined when the "university reaches an environment in which members of underrepresented minorities -- African Americans and Hispanics -- do not feel like spokespersons for their race."
To this, Roberts acidly asked Garre, "So, what, you conduct a survey and ask students if they feel racially isolated, and that's the basis for our constitutional determination?"
With Justice Samuel Alito's replacement of O'Connor in 2006, there was no question that the balance of power on the court had shifted toward the conservatives on matters of race. The University of Texas case is their first opportunity to revisit affirmative action in higher education since 2003.
In 1996, a federal appeals court with jurisdiction over Texas effectively abolished the affirmative action policy at the University of Texas at Austin's law school. In response, the state legislature passed the top 10 percent rule, a race-neutral policy designed to enhance student body diversity at the state's top public university by granting automatic admission to every high school senior who graduates in the top decile of his or her class. After the Grutter case effectively overruled that 1996 decision, the University of Texas at Austin reinstituted limited race-conscious admissions for that part of the class not admitted under the top 10 percent rule.
Abigail Fisher, a white woman, was one such applicant for the entering class of 2008. With 90 percent of the seats already filled with auto-admits, the admissions office rejected Fisher. She sued, arguing that the policy violated her constitutional right to equal protection. The lower courts determined that the university's affirmative action policy was consistent with the Grutter decision's command that it be a "highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment."
Justice Anthony Kennedy is viewed as the key vote in the Fisher case. Unlike Roberts, who memorably wrote in 2007 that the "way to stop discrimination on the basis of race is to stop discriminating on the basis of race" -- in a decision joined by Justices Alito, Antonin Scalia and Clarence Thomas -- Kennedy does not believe that the use of race in university admissions is always unconstitutional. In practice, however, he has voted to strike down every affirmative action policy that has come his way.
During Washington lawyer Bert Rein's argument for Fisher, Kennedy seemed to flirt with finding the university's policy constitutionally innocuous. "You argue that the university's race-conscious admission plan is not necessary to achieve a diverse student body because it admits so few people, so few minorities," Kennedy said. "Well, if it's so few, then what's the problem?"
But in the past, Kennedy has theoretically accepted race-conscious measures only as a last resort when all race-neutral alternatives have failed, and even then, the race-based decision has to be made in exacting terms.
Indeed, Kennedy turned decisive after Justice Alito asked Garre why, all else being equal, black or Hispanic students from privileged backgrounds "deserve a leg-up against, let's say, an Asian or a white applicant whose parents are absolutely average in terms of education and income." Garre's response that intragroup diversity of experience was important to the university as well made no apparent impact on Kennedy.
"What you're saying is that what counts is race above all," Kennedy said.
By the end of the oral argument, which Roberts permitted to go almost 20 minutes beyond its originally allotted hour, the Supreme Court's liberals looked dispirited. They were already one member down. Justice Elena Kagan -- who actually knows the inner workings of affirmative action in higher education from her time as Harvard Law School's dean -- recused, presumably due to her involvement as U.S. solicitor general in earlier proceedings of the case.
Still, Justices Ruth Bader Ginsburg and Stephen Breyer, as the only two members still remaining on the court from Grutter's five-justice majority, came out swinging when Rein began the presentation at the top of the hour.
Breyer reminded Rein that the Grutter majority anticipated that affirmative action would no longer be necessary in a quarter-century. "I know that time flies, but I think only nine of those years have passed," Breyer said.
But no member of the court seemed to have as much personal investment in the case as Justice Sonia Sotomayor. Speaking on a panel while serving as a federal district judge almost two decades ago, she had called herself "the perfect affirmative action baby. I am Puerto Rican, born and raised in the south Bronx. My test scores were not comparable to my colleagues at Princeton and Yale [Law School]. Not so far off so that I wasn't able to succeed at those institutions." Indeed, she graduated at the top of her class at both institutions.
So Sotomayor started Wednesday morning by asking Rein why Fisher belonged in court at all if the university said she was not qualified for admission regardless of racial preferences and she had already finished her undergraduate degree elsewhere. That question, of course, was directed more toward her conservative colleagues, who had made the decision to take the case with full knowledge of its procedural faults.
Over the course of the argument, Sotomayor listened and interjected as Rein indicated to Breyer and Ginsburg that their interpretation of the Grutter decision -- which they, not their conservative colleagues, had signed -- was wrong. After reading a note that Breyer passed to her halfway through the argument, Sotomayor craned her neck to find O'Connor in the audience. By the time Rein returned to the lectern for his rebuttal, she had smoked out exactly what was going on.
"You don't want to overrule Grutter. You just want to gut it," she said.
A decision is expected by the end of June.