Sunday 30 June 2013

A Busy Week at the Supreme Court (Part I): Fisher v. UT

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.

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.

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