WASHINGTON — The Supreme Court heard arguments in a major affirmative action case on Wednesday, with the justices debating the nature and value of diversity in higher education and the role of the courts in policing how much weight admissions officers may assign to race.
The questioning was by turns caustic, exasperated, and despairing, and it brought into sharp relief how much has changed since the court last addressed these issues in 2003. The member of the court who now probably holds the decisive vote, Justice Anthony Kennedy, tipped his hand only a little, asking a few questions that indicated discomfort with at least some race-conscious admissions programs. He told a lawyer for the University of Texas at Austin, which was challenged over its policies, that he was uncomfortable with its efforts to attract minority students from privileged backgrounds.
“What you’re saying,” Kennedy said, “is that what counts is race above all.”
He asked a lawyer for Abigail Fisher, a white woman who was denied admission to the university, whether the modest racial preferences used by the university crossed a constitutional line. Then he proposed an answer to his own question.
“Are you saying that you shouldn’t impose this hurt or this injury, generally, for so little benefit?” he asked.
Justice Sonia Sotomayor summarized the central question in the case. “At what point — when — do we stop deferring to the university’s judgment that race is still necessary?” she asked. “That’s the bottom line of this case.”
The last time the Supreme Court heard a major affirmative action case about admission to public universities, in April 2003, Justice Sandra Day O’Connor was at the court’s ideological center. And it was she who wrote the majority opinion in the court’s 5-4 ruling allowing race to be considered in admission decisions, as one factor among many. She attended Wednesday’s argument.
But now all eyes were on Kennedy, who dissented in the 2003 decision, Grutter v. Bollinger. More important, he has never voted to uphold an affirmative action program.
It seemed tolerably clear the four members of the court’s conservative wing were ready to act now to revise the Grutter decision. Chief Justice John Roberts asked whether someone who was “one-eighth Hispanic” counted as Hispanic, suggesting that the exercise of sorting people by race and ethnic background was unworkable if not absurd.
He appeared to grow frustrated when he repeatedly asked the university’s lawyer, Gregory G. Garre, how the court would know when a “critical mass” of minority students had been achieved. Garre gave only a general answer.
Justice Antonin Scalia proposed new nomenclature. “Mass, you know, assumes numbers, either in size or a certain weight,” he said. “So we should stop calling it a mass. Call it a cloud or something like that.”
The court’s more liberal members said there was no reason to abandon the earlier framework. “What is it we’re going to say here that wasn’t already said in Grutter?” Breyer said, adding that he was wary of “federal judges dictating the policy of admission of all these universities.” Fisher, 22, recently graduated from Louisiana State University. Her lawyer, Bert W. Rein, was questioned closely by the more liberal justices about whether she suffered the sort of injury that gives her standing to sue.
They also pressed the point that the Texas program is very similar to the one endorsed in Grutter. “It seems to me that this program is no more aggressive than the one in Grutter,“ Justice Ruth Bader Ginsburg said. “In fact, it’s more modest.”
Three-quarters of applicants from Texas are admitted under a program that guarantees admission to the top students in every high school in the state. That program, which has produced substantial diversity, is not directly at issue in the case. Garre said the percentage program worked in this sense only because “by and large, the minorities who are admitted tend to come from segregated racially identifiable schools.” In his brief, he had told the justices that the university should be free to supplement that pool with more privileged minority students to ensure “intra-racial diversity.”
A decision forbidding the use of race at public universities would almost certainly mean that it would be barred at most private ones as well under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in programs that receive federal money.
Justice Elena Kagan has disqualified herself, presumably because she had worked on the case as solicitor general. That leaves open the possibility of a 4-to-4 tie, which would effectively affirm a lower-court decision upholding the program.