WASHINGTON—After Chief Justice John Roberts read his shocking decision upholding President Obama’s healthcare law last June, Justice Anthony Kennedy read his dissent accusing Roberts of “vast judicial overreaching,” and then the 2011 term was over.
Construction crews started intense renovations of the court building. Many justices left Washington for summer teaching posts in Europe. They didn’t do interviews, and the media were left to speculate about the aftermath of such a bitterly divided decision. Trusted Supreme Court reporters wrote that some of the conservative justices weren’t on speaking terms with Roberts. Justice Antonin Scalia made a rare public appearance on CNN and denied that he and Roberts, at least, had had a falling out.
When the new term began last month, the press corps returned to analyze every tone of voice from the post-healthcare-decision justices. Had the dynamics between the nine changed? And did the healthcare decision signal Roberts’ drift to the left?
At the first hearings of the term, there was no sign of animosity between the justices. They were as combative as ever on the matters in the cases, but not with each other. And on Oct. 10, at the biggest case of the term so far, Roberts showed no sign of drifting leftward.
Abigail Fisher v. University of Texas weighs the University of Texas at Austin’s (UT) affirmative action admissions process, and could transform college admissions programs across the country. The justices, including Roberts, appeared ready to curb the ability to consider race in the college admissions process—what’s known as “affirmative action.” UT uses race as a factor in its “Personal Achievement Index” used to judge applicants. Abigail Fisher, a white Texan who wasn’t accepted into the school in 2008, sued, saying the process put her at a disadvantage.
A district court and the 5th U.S. Circuit Court of Appeals upheld the program. But the world of higher academia collectively spasmed when the high court agreed to hear the case, because that could mean the court wants to revise the 5th Circuit ruling.
More than 150 colleges and universities, public and private, filed briefs supporting UT’s program. Colleges have built their admissions processes on a 2003 Supreme Court ruling, Grutter v. Bollinger, which allows race as a consideration in admissions as long as it is one generalized factor among others. That was deemed constitutional in order to provide the “educational benefits of diversity.”
At the Oct. 10 arguments, the justices said over and over that they had no idea how to determine when a school was sufficiently “diverse,” which would no longer justify affirmative action. Racial discrimination is subject to the strictest constitutional scrutiny in the courts, so if the “compelling interest” of diversity no longer exists, affirmative action falls.
Roberts seemed ready to roll back the program, saying he saw no definite limits to universities’ power to use race in admissions to achieve a “critical mass” of diversity. He appeared to have Justices Scalia, Samuel Alito, and Kennedy on his side. (Justice Clarence Thomas never speaks at arguments.) Justice Elena Kagan, a former solicitor general under President Obama, recused herself from the case. With eight justices remaining, a deadlocked decision would mean the 5th Circuit’s decision upholding the Texas program stands.
The court has yet to agree to hear major cases beyond the college admissions case. One potentially important case, Kiobel v. Royal Dutch Petroleum, may decide whether foreign corporations that commit human rights abuses in other countries can face charges in U.S. courts. Other cases are more esoteric—one debates whether a houseboat counts as a boat or a house.
But the court is likely to hear at least one major case regarding traditional marriage laws, though it hasn’t officially accepted any of those cases. Awaiting the court’s consideration are appeals to California’s Proposition 8 as well as challenges to the federal Defense of Marriage Act. Lower courts have disagreed in their rulings on marriage, almost guaranteeing a high court hearing. But the court may be waiting for more cases before deciding which one to take.