In his column today, James Taranto of the Wall Street Journal took a look back at the Supreme Court's decision in Grutter v. Bollinger and outlined affirmative action's uncertain future in the college admissions context. In particular, Taranto posited the following:
The Supreme Court won't hear the current Michigan case (now known as Schuette v. Coalition to Defend) until the fall, by which time Grutter may no longer be good law. That is because the justices have heard oral arguments in another racial-preference case, Fisher v. University of Texas, and a decision is expected by June.
As is typical, the result will likely hinge on Justice Anthony Kennedy. He strongly dissented in Grutter, arguing that the majority had "abandoned or manipulated" its standard of "strict scrutiny" in order to uphold racial preferences. But he also agreed in principle that a university "may take account of race as one, nonpredominant factor" if its "considered judgment that racial diversity among students can further its educational task" is "supported by empirical evidence."
If Justice Kennedy adheres to that position in Fisher, the door will remain at least ajar for racial preferences. But in that event, Schuette will soon after provide an opportunity to revisit Grutter, with the Sixth Circuit having clearly established that Justice Kennedy's dissent was fully justified. The University of Michigan's racial preferences would then come to an end, some 15 years ahead of schedule by Justice O'Connor's watch.Only time will tell if Taranto is onto something, but in the meantime take a listen to the oral arguments from Fisher v. University of Texas and send us a tweet @nyujll to let us know what you think.