Affirmative Action is Back on Center Stage . . . and I Feel . . . Fine?

The Supreme Court granted review today in Fisher v. University of Texas at Austin. The question at the heart of the case is disarmingly simple, even innocent enough: whether the admittedly race-conscious undergraduate admissions program at the University of Texas at Austin meets the exacting demands of the Equal Protection Clause.

A sensible thing to do at this point, I imagine, is to read the lower court opinions, maybe even carefully.  With a clear sense of what the University of Texas-Austin has done, one could then re-read Grutter and try to chart the Supreme Court's expected path.  According to Judge Higginbotham on the 5th Circuit, the University of Texas--Austin is on safe constitutional ground per Grutter.  But is it?

I'd rather think about this case differently.  First and foremost, could the Court possibly overturn its 9-year-old holding in Grutter? Even in the face of the Rule of 4, which requires only 4 votes in order for the Court to accept a case, what other motivation could the justices have to grant review here? The next step is also quite clear: if admonitions from Justices Scalia and Kennedy are accurate indicators, the Court will soon face the constitutionality of Title VII and the Voting Rights Act.  This gets us to the end game: could Fisher be the beginning of the end of the Second Reconstruction?

You Cannot Have Your Cake and Eat It, Too

Although I am still cautious, I have been encouraged somewhat by comments from other progressives who know Solicitor General Kagan personally. Most importantly, I was thrilled to hear Kagan emphasize, rather than shy away, from her connection to the late Justice Thurgood Marshall. It made me hopeful that she would follow in Justice Marshall’s footsteps, bringing his same strong sense of justice for the disadvantaged to the bench.

BUT . . .