http://www.humanevents.com/2012/10/01/supreme-court-to-take-up-affirmative-action-case/
Supreme Court to take up affirmative action case
Probably the most highly anticipated case to be taken up by the U.S. Supreme Court for its 2012-13 term, which begins Oct. 1, is the affirmative action lawsuit involving a white college applicant who was rejected for admission at University of Texas at Austin.
The term may also be characterized by controversial topics related to cases not presently on the docket, but which could be added: the legality of gay marriage and proper implementation of the Voting Rights Act.
The biggest case in the term, at least in terms of its popularity and its prominence, is of course the Fisher affirmative action case, said Thomas C. Goldstein, author of the widely read SCOTUSblog.
Fisher v. University of Texas is the case brought by Abigail N. Fisher, who did not meet the University of Texas at Austins cutoff for automatic admission to its undergraduate program. She was also denied admission from within the general pool of applicants, for which it is the universitys policy to include race as a deciding factor.
Fisher sued the school in 2008, claiming that the race-based admissions policy was unconstitutional.
The Court could fail to resolve the case for two procedural reasons: After UT Austin rejected Fisher, she matriculated to Louisiana State University, raising the question of whether the case is a live issue any longer. Second, Justice Elena Kagan has recused herself from the case. Before she recused herself, National Review Online pointed out that doing so would open the door for a 44 tie on the ruling.
But Fishers alma mater and Kagans recusal are unlikely to make a difference due to Justices Anthony Kennedy and Samuel A. Alito, Jr.s history of suspicion toward affirmative action and other race-based programs, Goldstein said.
Fisher is successor to the decade-old affirmative action lawsuits Grutter v. Bollinger and Gratz v. Bollinger, known together as Grutter and Gratz. The big difference between them is not really the facts, but the fact that Grutter and Gratz were decided when Justice [Sandra Day] OConnor was on the Supreme Court, he said.
Her seat for these purposes has been taken by Justice Alito, who has substantially greater skepticism about the role of race in governmental decision-making.
As it stands, given the likely conservative tilt of the court in this decision, its likely the UT program is going to be in big trouble over its race-based admissions policy, Goldstein said. Such a Supreme Court ruling would at least ratchet back, if not fully reverse, the loose affirmative action parameters established by Grutter and Gratz, he said.
Goldstein was accompanied by Paul Clement at a discussion last Tuesday of the Supreme Court Terms October 2012 and 2013, hosted by the conservative think tank The Heritage Foundation.
Clement, who represented the challengers to the Patient Protection and Affordable Care Act in last terms Supreme Court case, discussed two issues not on the docket that the Court may be forced to take up: Section 5 of the Voting Rights Act of 1965 and the legality of the Defense of Marriage Act (DOMA).