U.S. Supreme Court

In Affirmative Action Arguments, Roberts Presses for Answers on Diversity 'Critical Mass'


In oral arguments on affirmative action in Fisher v. University of Texas at Austin on Wednesday, Justice Anthony M. Kennedy indicated he was troubled by the University of Texas’ efforts to admit more minorities, but he wasn’t nearly as critical as other conservatives on the court.

Kennedy’s vote will likely determine the outcome in the case. According to the New York Times, Kennedy “tipped his hand only a little, asking a few questions that indicated discomfort with at least some race-conscious admissions programs.” The National Law Journal, the Washington Post, the Los Angeles Times and SCOTUSblog also have stories on the arguments.

The case revisits the 2003 holding in Grutter v. Bollinger, in which the Supreme Court held 5-4 that universities may use race as a factor in admissions. Justice Sandra Day O’Connor, who wrote the majority opinion in Grutter, was in the audience for the arguments on Wednesday. Her replacement, Justice Samuel A. Alito Jr., has opposed affirmative action.

Kennedy dissented in Grutter, and he has never voted to uphold a campus affirmative action plan, the Post says. But he has agreed in theory that campus diversity is a compelling interest. Justice Elena Kagan has recused herself from the case, leaving the possibility of a 4-4 deadlock if Kennedy supports UT.

UT filled 70 to 80 percent of its incoming classes by accepting the top 10 percent of graduates from high schools across the state. The rest were chosen based on academic achievement and personal achievement, with race as a factor.

Chief Justice John G. Roberts Jr. pressed for answers on how much diversity was enough, but didn’t get an answer, likely because of past precedent barring quotas, the Times says. “What is the critical mass of African-Americans and Hispanics at the university that you are working toward?” Roberts asked.

SCOTUSblog summarized the arguments this way: “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.”

Prior coverage:

ABAJournal.com: “ABA Amicus Brief Supports Using Race as a Factor in College Admissions”

ABAJournal.com: “Chemerinsky: Supreme Court Revisits Affirmative Action in Universities”

ABA Journal: “Eyes of US Are Upon Texas: Affirmative Action Case Kicks Off the Supreme Court’s 2012 Term”

ABAJournal.com: “Supreme Court to Hear Challenge in ‘Potentially Momentous’ Case Testing College Affirmative Action”

ABAJournal.com: “Law Prof’s Amicus Brief in Potential Supreme Court Case Says Preferences Hurt Minorities”

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