Affirmative Action in admissions will be up for debate at the United States Supreme Court in just a little over a week. This will mark the first time since the controversial 2003 University of Michigan ruling that the high court has heard a case on the topic. And things may well be different this time around as the current court is, arguably, much more conservative than the 2003 court. The justice who wrote the deciding opinion in 2003, Justice Sandra Day O’Connor, has since retired. In her seat is Justice Samuel Alito, a conservative judge appointed by President George W. Bush.
But something else is different this time around. In 2003, the decision was a 5-4 one. Next week, there will be only eight votes as Justice Elena Kagan has recused herself from hearing the case due to her past role as Solicitor General of the United States in the Obama administration. So it’s very possible that a 4-4 decision will be reached, in which case the plaintiff will not win and Affirmative Action in admissions will persist as is.
Justice Clarence Thomas in 2003 wrote against the practice of Affirmative Action in college admissions, labeling it “elitist.” So we have a feeling we know where he stands on the topic. And we have a feeling we know where Justice Antonin Scalia stands (with Thomas). Justice Samuel Alito likely stands with them as well. It may come down to Chief Justice John Roberts, a conservative who surprisingly voted in favor of maintaining the core of Obamacare as the law of the land with regard to healthcare. Will he cross the aisle again? Or will Justice Anthony Kennedy, appointed by a Republican, vote against Affirmative Action? These are the questions of the day in the Affirmative Action case before the high court.