Supreme Court

SCOTUS Could Issue Major Ruling on Affirmative Action This Week

A decision in Fisher v. University of Texas at Austin is expected soon.


The U.S. Supreme Court will conclude its 2015-2016 term in less than three weeks. As of this writing, 16 argued cases remain undecided. Among them is Fisher v. University of Texas at Austin, a major constitutional dispute over the use of affirmative action by a public university. A decision in that case could arrive as soon as this week.

Fisher has been knocking around the federal courts for some time now. In 2008 Abigail Fisher, a white applicant, was denied undergraduate admission to the University of Texas at Austin (UT). Claiming that UT's race conscious admissions policy denied her the right to equal treatment under the law, Fisher sued in federal court, charging UT with violating the Equal Protection Clause of the 14th Amendment. But Fisher lost in U.S. District Court in 2009 and then lost again when the U.S. Court of Appeals for the 5th Circuit upheld the school's policy as constitutionally permissible in 2011.

U.S. Supreme Court

Fisher fared better before the U.S. Supreme Court, which in 2013 vacated the 5th Circuit's judgment and ordered that court to rehear the case. According to Justice Anthony Kennedy's 7-1 majority opinion (Justice Elena Kagan was recused and Justice Ruth Bader Ginsburg voted in dissent), the 5th Circuit erred in Fisher "by deferring to the University's good faith in its use of racial classifications." But "in fairness to the litigants and the courts that heard the case," Kennedy continued, the case should "be remanded so that the admissions process can be considered and judged under a correct analysis."

The correct analysis that the Supreme Court ordered the 5th Circuit to employ on remand is the tough level of judicial review known as "strict scrutiny." In brief, strict scrutiny says that when the government (including public universities) employs any sort of racial classification, that use of race must pass a two-part legal test. First, the use of race must serve a compelling government interest; second, the use of race must be narrowly tailored to achieve that compelling interest. Under current Supreme Court precedent, seeking to ensure diversity on campus counts as a compelling government interest. The question in Fisher is whether UT's affirmative action plan is narrowly tailored to achieve the government's compelling interest in campus diversity. Put differently, if UT has the option of promoting campus diversity via a less restrictive means than the one it is currently using, UT has failed the second part of the test and is supposed to lose the case under strict scrutiny.

Several months after the Supreme Court issued its decision, the 5th Circuit decided the case on remand, ruling once again in favor of UT's affirmative action policy. Shortly thereafter the Supreme Court once again decided to step in and review the 5th Circuit's judgment.     

During the December 2015 oral arguments in what we might call Fisher II, Abigail Fisher's attorney, Burt Rein, stressed that the use of race by the government is a "forbidden tool," an "odious classification" that the government should only be allowed to employ as a last resort. Gregory Garre, the lawyer representing the University of Texas, maintained that it is both necessary and proper for a public university to take race into account in order to avoid "the decrease in student body diversity under the very race-neutral policies that our opponents are asking this Court to impose."

Boiled down, this case presents a clash of constitutional visions. Is the Constitution a colorblind document that permits the government to take race into account in only the very rarest of circumstances? Or does the Constitution necessarily allow race conscious government programs like affirmative action in order to ensure that equal protection includes equal opportunity?

This Thursday the Supreme Court is scheduled to release its next batch of opinions in argued cases. Keep an eye peeled for Fisher II.

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  1. Clarence Thomas should recuse himself.

    1. You should recuse yourself from thinking, so as to not hurt yourself. Bloop Blop Derp Boink!

    2. Yeah, the opinion of the court might actually make sense and show some intellectual rigor if he participated. Wouldn’t want that!

    3. “I just don’t understand why everybody here thinks I’m on Team Blue!”

      By the way, there was a 500-comment post about Obama and guns, and you never delivered your usual lecture about how pro-gun he is. Busy weekend?

      1. Busy losing more money at stocks?

        1. That, or maybe he’s busy making preparations to attend Talking About Race: Confronting the New Wave of Islamophobia on June 23. (That link is currently on the front page of

    4. If Justice Thomas gave legal advice to an insitution regarding its affac policies (as Kagan did for ObamaCare) or its defense of its affac policies (as Kagan did in the Sebelius case), then yes, he should recuse himself. Judicial ethics 101.

    1. Which means that the Fifth Circuit ruling will stand.

      I’m sure there are a lot of people who are holding off on their SCOTUS appeals until the court is again at full complement.

      1. The function of SCOTUS is to remove from the chessboard pieces that might bring spoiler votes to the LP. Imagine if the Kleptocracy were right this minute STILL letting Illinoise and Okiehoma tar-and-feather gender-benders out of the County Clerk’s office? Mohammed would have handed the Orlando LP a whole passel of votes.

        I’m still waiting for the decision on discrimination barring Kenyan-born muslims from entering the White House.

        1. In the last 2 days i’ve read a half dozen of your comments, and for the life of me i can’t figure what in the hell you’re talking about in *any* of them.

  2. Under current Supreme Court precedent, seeking to ensure diversity on campus counts as a compelling government interest.

    Good grief, this doesn’t even pass the smell test.

    1. “compelling government interest” is a malleable thing. There’s basically nothing outside of that wheelhouse.

      1. It really is completely devoid of meaning, isn’t it.

        1. Next you’ll say the Commerce Clause is a catch-all.

        2. “In the name of government interest, I compel thee!”

      2. I believe freedom lies mostly outside of it…

    2. Government should neither ensure or prevent diversity. Either of those things is overstepping their limits.

    3. The diversity in this case is hilarious. UT has plenty of diversity. The problem is that the diverse were admitted by the 10% rule and aren’t really competitive academically. So UT is arguing explicitly for AA for diverse students who are better students than the 10%ers but weren’t in their top 10% or went to private schools (ie wealthy kids).

  3. Declare yourself trans-racial, claim to identify as one of the racial groups which benefit from affirmative action, and bingo! Problem solved.

    Next case.

    1. It worked for Elizabeth Warren.

    2. Speaking of trans, you can buy an original Smokey and the Bandit 1977 Trans Gender Am here:…..CAR-190067

      1. “I got a Smokey on my tail – I think it’s because I’m using the ‘wrong’ lane. Those cisnormative oppressors!”

    3. Don’t laugh. Puerto Ricans are by gubmint definition Latinos, even if parents were Dutch or Irish.

      1. “Pardon me, my good man, I am Biff Witherspoon Vanderbilt III, and I would like to submit my application for admission to your prestigious institution of higher learning. Please note that I am a hispanic who was born in Puerto Rico. Indeed, it makes my hot Latin blood boil when I contemplate how the gringos have held down my people. Now I hope you will excuse me, but I am scheduled to attend a party featuring margaritas, salsa, a mariachi band, and highly suggestive dancing.”

        1. “Did they fall for it, Thurston?”

          “Now, ducky, it will be some time before we hear back from them, but I believe that I did a reasonable facsimile of a Latin person. The poolboy has been giving me some very useful lessons.”

          “He’s been giving me some useful lessons, too, Thurston.”

          “What was that, ducky?”

          “Nothing, I simply said that I can wait until you leave…for university.”

  4. Penaltax!

  5. Root asks:

    Or does the Constitution necessarily allow race conscious government programs like affirmative action in order to ensure that equal protection includes equal opportunity?

    This question makes no sense.

    What is this thing, “equal opportunity”? Affirmative action does not cause equal protection to include equal opportunity, whatever that is. Affirmative action is simply a brute-force method to achieve some bureaucrat’s preferred ratio of races.

    It’s been decided that if people with enhanced pigmentation are not present in college at exactly the same percentage as they are in general society, then that is prima facie evidence of racism. Racism is an important factor, but it is not the only one. However, discussion of those other factors has been rendered off limits and beyond the pale by serious and thoughtful people.

    Therefore, brute force is all we have left.

    1. Or does the Constitution necessarily allow race conscious government programs like affirmative action in order to ensure that equal protection includes equal opportunity unequal opportunity and special privileges to produce equal outcomes?

      I fixed it.

    2. so long as government isn’t using race as a factor in admissions, then everyone has an equal opportunity UNDER THE LAW.

    3. I agree with you guys. Affirmative Action is the opposite of “equal opportunity”. It is the government forcing an “equal outcome”.

    4. If diversity is the goal, why not give preference to gay-baiting mohammedan terrists, like in Florida? or rapists, like in Europe?

  6. Isn’t it about time to finally abolish institutionalized racial discrimination in the United States?

    1. Serious question: What percentage of millennials and younger know what “Jim Crow” is?

      1. Millenials know that Jim Crow played for the Cleveland Browns from 1957 through 1965. He’s widely considered to have been the greatest running back in NFL history.

        Jim Crow is also famous for his role in The Dirty Dozen, playing with Lee Marvin, Ernest Borgnine, Charles Bronson, Donald Sutherland, and Telly. Fucking. Savalas.

      2. Good question. According to my anecdotal evidence lived experience, some of think it has something to do with laissez-faire.

      3. Is it one of the bottom-shelf bourbons?

  7. Can anyone here name a “government interest” that does NOT involve compulsion? UT is still renaming dorms and buildings baptized in reverence of Grand Goblins of the Klavern, and circulating the myth that Bevo (the Longhorns’ castrated Bos taurus) WASN’T named after the Anheuser Busch nonalcoholic beer hated and cursed throughout the 1920s. Rotsa ruck with that one…

    1. Can anyone here name a “government interest” that does NOT involve compulsion?

      Stamp collecting?

      *** bites lip ***

      1. Depends on whether the collection includes Lysander Spooner stamps?

    2. “Can anyone here name a “government interest” that does NOT involve compulsion?

      “Compulsion” is a funny word for making people abide by the contracts they willingly signed. If I willingly signed a contract and then refused to abide by it, I’m the one that’s using compulsion.

      Also, I argue that while punishing criminals may appear to be compulsion, the punishment is actually a result of something the criminal willingly chose to do.

      Generally speaking, you’re right in that the use of government is fraught with compulsion–and that’s a great reason why government should be minimized to as small a role as possible in our society.

  8. Since the 14th Amendment prohibits states from denying equal protection of the laws to any citizen, state-run universities shouldn’t even be allowed to ask on the application what race the applicant is.

  9. Quit calling it “affirmative action”. It’s racial discrimination, and that’s wrong, no matter whose ox is being gored.


  10. Rollem up and lets go dude, Like seriously.

  11. Diversity as a compelling interest is complete bullshit. The Grutter court completely deferred to UM when it made that argument, based on highly suspect “research”, which hardly sounds like a very exacting argument – it certainly isn’t on par with national security – the usual justification as a compelling interest. Easily one of the worst opinions O’Connor ever wrote.

    Diversity is no more than racial bean counting. Thus, the government is allowed to use race as a factor in admissions because otherwise too many of the “wrong” races and not enough of the “right” races would be admitted. That doesn’t exactly sound very compelling

  12. Is the Constitution a colorblind document that permits the government to take race into account in only the very rarest of circumstances?

    No, it’s a colorblind document that doesn’t authorize the application or consideration of race in any condition.

  13. I’ve never understood why SCOTUS remands cases back to lower appellate courts with instructions on the right law to apply.

    Why can’t SCOTUS just decide the damned case itself, using the right law that it just identified? The appellate court re-deciding the case adds nothing that SCOTUS couldn’t do itself – both are appeals courts that are confined to the facts found at the trial court and charged with applying the law to those facts.

    Now, remands to trial courts make sense – they are fact-finders, and the appellate courts are not. Remands to appellate courts make no sense to me.

  14. This is such BS.

    SCOTUS needs to shove Indian-style quotas. Use the next census to say 11% African American, 13% Hispanics, etc. That would negate any disparate impact.

    Learn from India. Quotas, not merit.

    All in the name of equality.

  15. SCOTUS Could Issue Major Ruling on Affirmative Action This Week

    Affirmative action is a great idea.
    In 2000 – 2008 we had the mentally handicapped in the White House.
    In 2008-2016 we had the village idiot in the White House.
    I can hardly wait which mental defective will be in the White house from 2016 -2020.
    I’m sure our country will benefit from putting the mentally deficient in the executive office for 20 years.
    What could possibly go wrong?

    1. Affirmative action is only a great idea if you are not White and Male.

  16. I give it a 4-4 at best.

    Universities should have a 100% quantitative admission policy.

    A multiple choice admission test with no essay. if there are 150 seats open for freshmen year, the top 150 grades get admitted. Those

    This way there will be no need for affirmative action or any of this other crap. Black/whites/gays/handicap/women/men can’t complain that they were discriminated against.

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