Is Fisher really the case to end affirmative action?

After the Supreme Court hearing earlier this year on the Affordable Care Act and this week’s hearing on Fisher v. University of Texas at Austin and affirmative action, I have a new appreciation for tea leaves.

They have far greater predictive powers compared to any actual courtroom hearing if you’re trying to figure out how SCOTUS will vote at a private conference session set for Friday (Oct. 12).

Was the Wednesday hearing full of hints or just more red herring?

You be the judge. (Read the transcript here.)

The liberal judges seemed concerned about even considering Fisher’s claims. Justice Ginsburg wondered if Fisher, who officials say wouldn’t have been admitted to UT-Austin under any circumstances, even had a case. As I’ve often wondered, how was Fisher actually injured by UT? By having to go to LSU?

Justice Sotomayor wondered what relief Fisher sought. Did she come to the Supreme Court because she desperately wanted a refund of her $100 application fee?

Justice Breyer was even more concerned that the case would depend on the court overturning Grutter only nine years after it was decided.

Among the conservative justices, there seemed mostly to be a lot of head scratching and questions for clarification that may or may not indicate where the justices stand. Chief Justice Roberts, who was sly on health care, questioned UT on the issue of “critical mass.” That’s the point where a school knows it’s reached its diversity goal. But no one could or would say what exactly “critical mass” meant. It doesn’t mean UT’s process is affirmative action gone amok. But the Court may want to more tightly define Grutter.

Justice Samuel Alito, a man who never met an affirmative action program he liked, and one who is presumed to be part of at least a four-vote bloc for Fisher (Roberts, Scalia, Alito, Thomas), also raised the issue.

I’ve wondered previously if Fisher had such a good case, why the over-reliance on Asian Americans as victims? Asian Americans may have built the transcontinental railroad, but they really aren’t the best to build Fisher’s affirmative action case–not when Asian Americans are actually helped by the UT plan. Fisher relied on the cries of some Asian Americans who didn’t get in, but she totally ignored those from other under-represented Asian American subgroups who were aided.

Justice Alito seemed to question this as he asked how UT knew if critical mass was reached among a large group that’s often lumped together like Asian Americans. I don’t think it’s because he understood how non-monolithic Asian Americans are. But in asking about Asian American subgroups, Justice Alito actually mentioned Filipino Americans by name, and just in time for Filipino American History Month. What a guy, I thought. A homey shoutout!

Like he really cared.

Probably not. But maybe he saw that study that identified the majority of Filipinos as Republicans.

In general, the conservative justices questioned whether schools have enough guidance from the current law to consider race in the admissions process.

When asked by Justice Sotomayor, Bert Rein, Fisher’s lawyer, said he didn’t think Grutter needed to be “gutted.”

He said it should be “corralled.”

And I guess all those going through are just cattle?

If Justices Breyer, Ginsburg, and Sotomayor are clearly against Fisher, they could be joined by Justice Kennedy, who didn’t seem too friendly to the Fisher side.

At one point he put Fisher attorney Rein into a particularly tight corner:

JUSTICE KENNEDY: You argue that the University’s race-conscious admission plan is not necessary to achieve a diverse student body because it admits so few people, so few minorities. And I had trouble with that reading the brief. I said, well, if it’s so few, then what’s the problem.

MR. REIN: Well, it’s a question –

JUSTICE KENNEDY: Then–let’s assume –

MR. REIN: Excuse me, Justice Kennedy.

JUSTICE KENNEDY: –that it resulted in the admission of many minorities.

Then you’d come back and say, oh, well, this is–this shows that we were probably

wrongly excluded. I –

MR. REIN: Well –

JUSTICE KENNEDY: I see an inconsistency here. There has been much talk about Justice Kennedy being the swing voter. I’d say Kennedy may swing with the liberals, since his problem may be more with the specific case than with the idea of affirmative action as a means to achieve diversity.

As reported, the actual vote is Friday, but the opinion may not be out until after Asian Pacific American Heritage Month next May.

For my money, I say the court sidesteps making a major decision, preferring to wait for yet a better plaintiff and a better case. Grutter stands for now.

My predictive skills are hot right now since I had the Giants in five, and I have them beating the Nationals.

And Fisher?

Maybe she can get that $100 application fee refunded.

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Emil Guillermo is an independent journalist/commentator. Updates at Follow Emil on Twitter, and like his Facebook page.

The views expressed in his blog do not necessarily represent AALDEF’s views or policies.

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