This month, the Supreme Court will hear argument in Fisher v. University of Texas at Austin, a case that is widely expected to end race-based affirmative action in higher education. A decade ago, Grutter v. Bollinger upheld that practice, holding that public universities and colleges could lawfully include race as one factor in admissions decisions to foster racial diversity on campus. At the time, the Court speculated that such diversity would be achieved in twenty-five years and that race-based affirmative action thus would no longer be necessary in 2028. The Roberts Court now appears ready to ditch the practice much sooner.
This prospect should come as no surprise. Vulnerable from the start, Grutter was the product of a deeply divided Court and has lacked majority support among the Justices ever since its author, Justice O'Connor, retired in 2005. Since then, the Roberts Court has voiced its hostility to race-based criteria in a host of contexts and has also repeatedly shown its willingness to displace precedent it dislikes. Adding the fact that Fisher contains none of the characteristics that typically justify Supreme Court review and it looks like a safe bet that the Roberts Court did not take the case to affirm the wisdom of diversity-seeking affirmative action. It is far more likely that it will use Fisher as a vehicle to condemn Grutter and the type of decisionmaking it fosters.