POLITICS
12/09/2015 02:15 pm ET Updated Dec 10, 2015

Chief Justice John Roberts Wants To Know Exactly When Affirmative Action Can Die

In a contentious hearing, the Supreme Court shows deep divisions on whether race can remain a factor in college admissions.

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WASHINGTON -- The U.S. Supreme Court split bitterly on the issue of affirmative action in public universities on Wednesday, casting doubt on whether considering race in college admissions will remain legal much longer.

In a hearing that extended well beyond the initial one-hour limit, the justices once again were divided on whether the admissions plan the University of Texas at Austin uses when admitting students -- which the court already vetted in 2013 -- is constitutional.

The UT system follows what is known as the Top Ten Percent plan, an ostensibly "race-neutral" rubric under which roughly 75 percent of its admissions pool consists of top-ranking students at high schools across the state.

But UT weighs the remaining 25 percent of applicants "holistically" -- that is, taking into account a host of factors, of which race is only one. Abigail Fisher, the white student at the center of the case, claims that this part of the rubric violates the Constitution.

"What's wrong with this plan if need is put aside?" a skeptical Justice Sonia Sotomayor asked Bert Rein, the lawyer representing Fisher. By "need," Sotomayor meant the need for diversity, which the court in past cases has deemed acceptable as a matter of constitutional principle. She seemed to want a commitment on whether this should remain the benchmark.

Sotomayor and her liberal colleagues, Justice Ruth Bader Ginsburg and Justice Stephen Breyer, posed tough questions of Rein and seemed keen on pulling the veil back on the real endgame of the case: not just the limited consideration of race at UT, but all affirmative action use in higher education nationwide. (Justice Elena Kagan recused herself due to her involvement with the case when she was solicitor general.)

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Abigail Fisher is challenging the use of race in admissions at the University of Texas at Austin, in a case the Supreme Court could use to cut back on or even eliminate affirmative action in higher education.

After Rein skirted multiple questions on whether the continued use of race as one of many criteria can remain constitutional, Breyer seemed to get impatient.

"I'm saying R-A-C-E," he said. "What are the things that, in your view, would be OK?"

Breyer appeared to want Rein to say explicitly that race is never acceptable -- a theme that Ginsburg explored when she probed why UT had a Top Ten Percent plan to begin with.

The existence of the plan is "totally dependent upon having racially segregated neighborhoods, racially segregated schools, and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education," Ginsburg said, implying that UT uses the plan because there is inequality elsewhere in Texas.

When it came time for UT's lawyer to argue the school's position, Chief Justice John Roberts seemed to want a timeline for an end to affirmative action programs altogether, alluding to a 2003 case in which the Supreme Court predicted race-conscious programs would no longer be needed in 25 years.

"Are we going to hit the deadline?" he asked. "Is this going to be done, in your view, in 12 years?"

Under that 2003 decision and an earlier 1978 ruling, public universities may consider race as one of many factors when selecting their entering classes. Under those precedents, admitting some applicants of color is permissible for the limited purpose of reaching a diverse "critical mass" of students.

The justices referenced these cases time and again. And in the end, it seemed that Justice Anthony Kennedy -- often a pivotal vote, and the author of the 2013 decision in this same case -- would hold the reins of the final outcome.

As former U.S. Solicitor General Gregory Garre, the lawyer for the university, explained how low minority enrollment led to "glaring racial isolation" for students of color, Roberts questioned whether increasing their numbers was a valid educational objective.

"What unique perspective does a minority student bring to a physics class?" he wondered, but later tweaked the question: "I'm just wondering what the benefits of diversity are in that situation."

Garre later said, "I think what experience shows -- at Texas, California and Michigan -- is that now is not the time and this is not the case to roll back student body diversity in America."

He seemed to be responding -- obliquely -- to Roberts' suggestion of a timeline. Whether one exists will be known by the end of June, when a decision is expected.

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