In the week since Chief Justice John Roberts single-handedly saved the Affordable Care Act, and maybe Obama's reelection, with a counterintuitive (and possibly last-moment) decision to uphold the individual mandate, liberals have singing the man's praises. Suddenly Roberts was a pillar of principle, a leader who valued the legitimacy of the court more than ideological victories, and decided laws based on how their actual text related to the Constitution rather than reading into bills his batty partisan demons, a la certain cranky justices we know.
This theory doesn't last much past the words Citizens United. But CU is old news at this point, especially given the Court's summary rejection of Montana's challenge to it that appears to end the argument for the foreseeable future.
But a more alarming rebuttal to the We Heart John Roberts toast might be found in two coming Supreme Court decisions, in which the conservative, and somewhat "activist" side of John Roberts is likely to show through, much to the consternation of liberals currently in love with him.
1. Affirmative Action
Fischer v. University of Texas, the first big affirmative action case since Grutter v. Bollinger, is on the docket for the Court's fall term, and considers the case of Abigail Fischer of Sugarland, Texas, who alleges that she was denied the chance to drink underage at Trudy's admittance to UT because she was white, while minority students with lower GPAs got in ahead of her.
In 2003, Sandra Day O'Connor argued for the majority in Grutter that schools could consider race within narrow contexts. The Texas university system uses what's called the Top Ten Percent plan, which admits the top ten percent of each high school to the university system, a plan that effectively institutes a form of affirmative action (because it lets in the top ten percent of lower income schools along with the Westlakers), but corrects more for class than for race (an all around more effective version of the corrective, in this humble PoliticOlogist's opinion).
Nobody has a problem with Top Ten. But once the top ten percent have been admitted, UT reverts to a race-based system, one they devised following the Grutter decision. Fischer is arguing against this second tier of admittance. Via SCOTUSBlog:
First, she argues that the university’s policies go farther than the Court's decision in Grutter permits: although the Court in Grutter recognized that states have a strong interest in having admissions policies that promote diversity, so that students can receive the educational benefits created by diversity, in this case the university's use of the Top Ten Percent Plan had already made it one of the country's most diverse public universities. The university's efforts to further increase diversity – by considering race as a factor to fill the remaining slots – so that the student body more closely matched the state's overall population are, Fisher contends, really just the kind of racial balancing that the Court in Grutter indicated would be unconstitutional.
But Fischer also ends her brief with a far broader and potentially more devastating argument that the Court should overturn Grutter entirely. Here's where things get interesting: Sandra Day O'Connor, the swing vote on Grutter, is no longer on the Court, having been replaced by Samuel Alito, who has decided in the past against race-based admission policies in Ricci v. DeStefano, which overturned New Haven's admissions for firefighters. Kennedy, Scalia and Thomas sided against O'Connor's decision in Grutter, giving Fischer four votes in favor of overturning the law. Justice Elena Kagan has recused herself, leaving only four votes in play. One of them is Roberts, who also sided with Kennedy in Ricci, and who, despite his vote upholding the ACA, is very much a conservative judge. If he sides with Fischer in favor of overturning Grutter, affirmative action goes down 5-3.
It's possible the Court sides with Fischer on a limited ruling that merely overturns UT's second-tier admissions poilcy. But the mere fact that they've accepted the case portends otherwise. Via TPM:
The court accepted the case knowing that it would have no effect on the plaintiff, who is set to graduate from another college this year. That's an indication that the justices are interested in revisiting the principles that went into the 2003 decision, which held 5-4 that colleges have compelling reason to consider race in the admissions process.
That UT's standards will be upheld seems extremely unlikely. At this point, the best affirmative action supporters can hope for is a narrow decision. But signs increasingly point to the probability that affirmative action won't survive the fall.
Next: Voting Rights Act
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