In the first of a series of blog posts, Dr. Emma Long takes a look at the recent opinions handed down by the Supreme Court:
The US Supreme Court has had a busy week. By itself this is not unusual: the last
week or so of the Court’s term often sees a flurry of opinions handed
down. And it’s also not unusual
that some of the most controversial cases appear at this time of year (remember
the Court’s opinion on Obamacare last year?). Issues which are legally or politically controversial may
divide the Justices and require time for issues to be worked out and the opinions
written. What makes this week
particularly unusual is that the Court has handed down opinions in four
controversial cases and done so in three days: affirmative action, the 1965
Voting Rights Act, and same-sex marriage have all been addressed by the Court
this week. But what has the Court
said, and why is it important? In
the following posts I want to look at each of the four cases, what the
controversy involved, what the Court said, and what this tells us about the
Supreme Court and the law on these issues in the US.
Fisher v. University of Texas
On Monday (June 24), the Court handed down the first of these
cases. Fisher v. University of
Texas involved universities’ ability to take race into account in
admissions decisions. Although
focussed on this narrow issue, the case was widely perceived to have broader
implications for affirmative action policies (known in the UK as positive
discrimination).
The Case
Abigail Fisher sued the University of Texas for racial
discrimination. She did not gain a
place at UT despite, she argued, having higher grades than some students from
minority backgrounds. The UT
system thus discriminated against her, Fisher argued, because she is
white. This argument is not new: a
significant number of challenges to affirmative action programmes have taken a
similar path. In response, the
University argued that their policy was not exclusively based on race and that
race was only one of a series of factors considered to ensure a diverse student
population. This goal, they
pointed out, had been accepted by the Court in previous cases challenging the
role of race in university admissions policies.
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| Abigail Fisher at the Supreme Court last October |
The Court
The Court, in a relatively brief opinion, ducked the
issue. The Court has required laws
which discriminate against discreet minorities to meet a standard of review
known as “strict scrutiny”, meaning the law must be narrowly tailored to meet
its objectives and have a compelling reason for existence. In this case, the seven Justice
majority argued, the lower court did not apply the correct standard of review.
The lower court, according majority, had not sufficiently considered the
operation of the UT policy or asked whether the same results could be achieved
by race neutral policies. As a
result, the Supreme Court returned the case to the lower court for
reconsideration without deciding the question of whether the UT system of
student admissions discriminated against Abigail Fisher.
The Significance
Perhaps most interesting for Court watchers is the fact that
the Court really did very little in this case. Given that the case was argued back at the start of the
Court’s term in October, there had been a sense that something major was
brewing. The general consensus
among commentators seems to be that divisions over the key issues among the
Justices led to the crafting of a compromise opinion that upholds previous
rulings but does little else. The
agreement between the Justices on the Court’s conservative and liberal wings,
who would not normally be expected to agree on affirmative action, provides
support for such an interpretation.
As does the fact that no side gains or loses (yet) as a result of the
ruling: race conscious admissions programmes may remain if they can meet the
standards of strict scrutiny, effectively leaving the law where it was. Given the time, effort, and cost
involved in taking a case to the Supreme Court, it is rare that the Justices accept
cases simply to decide to leave things where they were. History tells us it is often in cases
resolved this way that the Justices have agreed not to decide, but to pass the
case back to the lower courts for further consideration.
For many though, the result has come as something as a
relief: there was a widespread fear that the Court might use Fisher to
strike down affirmative action programmes permanently. The decision, at least on the surface
and for now, permits such programmes to continue. But the standard of strict scrutiny is tough to meet, and
critics of the decision argue that this will simply lead to the demise of
affirmative action anyway. The
University of Texas, meanwhile, seems confident that its policies can meet
strict scrutiny review.
One thing is clear however; the lower courts are likely to
be litigating this issue for some time to come as a result of Fisher. However, supporters of affirmative
action are facing another battle in the shape of Schuette v. Coalition to
Defend Affirmative Action which the Court has agreed to hear in its next
term starting in October. This involves a challenge to an amendment to the Michigan
Constitution, approved by voters, that bans affirmative action in the
state. How the Court addresses that
case may have consequences far broader than those in Fisher.
