The critical swing vote was cast by then-Justice Sandra Day O’Connor, who wrote in her decision that such race-based programs should be phased out as unnecessary within 25 years.
Since then, Justice O’Connor has been replaced on the high court by Justice Samuel Alito, who is far less open to race-based admissions plans than was O’Connor.
In addition to this rightward shift at the court, Justice Elena Kagan, an affirmative action supporter, is recusing herself from consideration of the case. Justice Kagan worked on the Texas case as the Obama administration’s solicitor general before joining the high court.
“The last time the court considered affirmative action in higher education was the 2003” Grutter case, says Brian Fitzpatrick, a professor at Vanderbilt Law School. “It is possible the court could use this case to overturn Grutter’s permitting universities to use affirmative action for diversity purposes.”
But he notes that it is not the only potential outcome. “It is also possible the court will narrowly focus on the unique circumstances of the University of Texas,” he says.
For example, if the court was troubled by the university’s broad use of race to attempt to achieve diversity in every classroom at the university, the justices could strike down that portion of the university’s plan as being outside the guidance offered by the high court in the 2003 Grutter decision.
More problematic from the perspective of affirmative action supporters is the possibility that the justices use the Texas case to completely reexamine the diversity rationale that was narrowly approved in 2003.
“The court is right to take the case, because the justices must keep an eye on what schools are doing,” says Roger Clegg, president of the Center for Equal Opportunity and a long-time critic of race-based admissions programs.