The Supreme Court announced today that it will take up its first major affirmative action case since Grutter v. Bollinger. In Fisher v. Texas, a white student named Abigail Fisher said she was rejected by the University of Texas on the basis of her race.
Supporters of racial preferences fear that the stars are aligned in Fisher’s favor, with a conservative majority that could conceivably discard Grutter. “There thus seem five votes – Roberts, Scalia, Kennedy, Thomas and Alito – to overrule Grutter and hold that affirmative action programs are unconstitutional,” the New York Times quotes Erwin Chemerinsky, dean of the law school at the University of California, Irvine, as saying in a book titled The Conservative Assault on the Constitution. (Never mind that Grutter is a Sandra Day O’Connor concoction that oddly decides something can be constitutional for 25 years before the justices get to reconsider).
Elena Kagan, an Obama-appointed justice in the liberal bloc, will recuse herself from the case because of her past role as solicitor general.