In his dissent, Justice Scalia declared that the Court’s refusal to hear the Denver case “invites speculation that [the Court’s rejection of the use of racial preferences in contracting] has effectively been overruled.” In the spring of 2004, the Court was asked to hear two cases where a federal appellate court had ignored Adarand; the Court denied the petitions. It appeared that Justice Scalia was right. These were dark days.
In the Court’s 2003 ruling on the use of race by law schools to achieve “diversity,” Justice O’Connor opined that such programs should last no longer than 25 years. Given the Court’s troubling history on the issue and the relentlessness of advocates of state-sponsored racial preferences and quotas (wrongly called “affirmative action”), proponents of a color-blind Constitution took no comfort in her meaningless pledge. Their worst fears were realized when, using Justice O’Connor’s 2003 ruling, the U.S. Court of Appeals for the Ninth Circuit upheld the constitutionality of a plan by Seattle School District #1 to assign students based on their race to achieve “diversity.”
Fortunately, on June 5, the Supreme Court agreed to review the Ninth Circuit’s ruling as well as that of another federal circuit on the same subject. Late last month, briefs were filed; more briefs will be filed next month; oral arguments are yet to be scheduled.
The good news is that there is a chance that the Supreme Court will issue the ruling that Justice Harlan enunciated 110 years ago. The bad news is that this may be its last opportunity to do so.