The Supreme Court is taking an unusually long time to decide its big affirmative action case, suggesting it could be crafting a bold ruling to destroy race-based preferences.
In October, the court heard a challenge to the University of Texas at Austin's admissions policy, which accepts the top 10% of students from every high school in the state, while considering race and other factors for students who aren't in the top 10%.
Those arguments were eight months ago. Supreme Court cases — even big ones like Obamacare and gay marriage — usually take three or four months to decide. The Supreme Court's term ends this week, and it still hasn't decided the UT case.
"You'd almost expect something unusual to have happened for this to take 8 months," UCLA law professor Adam Winkler tells us.
The case should be pretty simple. After all, the Supreme Court has ruled on affirmative action before. In a 2003 case involving the University of Michigan's law school, the high court said colleges can consider applicants' race to achieve a "critical mass" of minorities.
The Supreme Court could have used the reasoning from the 2003 ruling either to affirm UT's policy or to say it's going too far by considering race and using its 10% plan (which also makes the school more diverse). But that would have been a "copy and paste job" that probably wouldn't have taken so long, according to Winkler.
"One possibility is that instead of doing a copy job ... Maybe the conservatives have decided to go bold and make an assertive ruling," Winkler says. "That would occasion the liberals to have to write extensive dissenting opinions."
That would take a lot of time. "A bold ruling declaring the Constitution to be colorblind would be contrary to over a century of Supreme Court case law," Winkler says. "It would occasion a lot of writing, a lot of argument, a lot of back and forth."
Some legal experts have argued that colleges can still try to make their student bodies diverse even if the Supreme Court bans affirmative action. Still, the implications could be huge if the court goes bold and says that government and entities that take government money (like universities) can't consider applicants' race, Winkler says.
Government contractors and agencies, for example, couldn't take explicit steps to make their workforces more racially diverse. Colleges would need to find entirely new and creative ways to ensure blacks and Hispanics were part of their student bodies (including by using socioeconomic status as a proxy for race).
Other experts have also predicted the Supreme Court will strike a blow to affirmative action. Supreme Court lawyer Carter Phillips has told BI the court will likely strike down UT's use of race because its 10% admissions plan already achieves diversity.
During oral arguments, conservative justices suggested they may "cast aside" the heart of the court's 2003 ruling that upheld affirmative action, veteran Supreme Court lawyer Lyle Denniston has written.
Of course, it's not a foregone conclusion that the court will dismantle affirmative action. But the long wait we've had makes it an increasingly likely possibility.
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