Five Justices in a Bubble: The Court’s Step Back on Race

Posted by Eric Lewis, The New Yorker

The Supreme Court’s rulings this week on affirmative action and voting rights appear, at first glance, to have been a split decision. In Fisher v. University of Texas, the Justices sent the university’s affirmative-action program back to a lower court for reconsideration (rather than, as some expected, declaring it unconstitutional), while in Shelby County v. Holder, they struck down a key part of the Voting Rights Act as an infringement of state sovereignty, deeming it no longer necessary given the progress of civil rights over the past forty years. In fact, these two decisions represent a complete rout for pragmatic remedies to the continuing legacy of racial discrimination. (I should note that, as a lawyer for Texas state legislators, I submitted an amicus brief in the Fisher case.)

Four members of the Supreme Court rest easily in the belief that the bad old days of segregated education and poll taxes are matters of historical curiosity, unrelated to the color-blind society in which they think we live. Add the bile of Clarence Thomas, who views all considerations of race as inherently demeaning to minorities, and sixty years of courageous jurisprudence has now been definitively abandoned in favor of a world in which the reality of race in this country has been judicially wished away. The Voting Rights Act as an effective tool against suppressing minority votes has been jettisoned. A careful reading of the University of Texas opinion makes clear that affirmative action, in any practical sense, will follow shortly thereafter, not through overruling of prior precedents but by setting the bar for race-conscious remedies so high that it cannot be overcome.

The University of Texas and the United States Congress are hardly bastions of race-conscious social engineering. In 1998, the University of Texas adopted a “ten-per-cent plan,” which admitted the top decile of each graduating public high-school class in Texas. While this brought more African-Americans and Hispanics into the Austin campus, the flagship of the Texas state system, the Texas regents still judged there to be a lack of adequate diversity at U.T. African-Americans and Hispanics from largely segregated schools were admitted in greater numbers, but those in more mixed school districts were denied admission. Following the precedents approved by the Supreme Court for the University of Michigan Law School, U.T. approved, in 2004, the addition of race as part of a complex formula, the Personal Achievement Index, which measured a variety of factors, including growing up in a single- parent household, speaking a language other than English at home, and other socioeconomic conditions, in evaluating a student.

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