In its upcoming October 2012 term, the Supreme Court will consider the case of Fisher v. University of Texas at Austin. At issue is whether or not this public university violated the Equal Protection Clause of the 14th Amendment by using race as a factor in deciding undergraduate admissions. At The New Yorker, liberal legal writer Jeffrey Toobin, a supporter of affirmative action and other race-conscious government policies, has an interesting preview of the case. What’s perhaps most notable is the fact that Toobin thinks the Texas policy—and possibly even affirmative action itself—may be in real jeopardy. He writes:
The Texas case only concerns admissions practices at public universities, but based on past practices, the courts will likely apply the resulting ruling at private schools as well. The case will also not deal directly with affirmative action in the workplace, but, again, the same standards will likely be applied in that context. The great national experiment with affirmative action began in the Johnson Administration, thrived in the Nixon years, and has survived, embattled but enduring, ever since. We may now be in its final chapter.
In a way, it would not be surprising if the Court sent affirmative action to its doom. No figure in public life, including President Obama, has made a full-throated defense of the practice in years. On an aggressively conservative Court like the current one, that relative silence could well be seen as an invitation to dismantle the practice.