On affirmative action, those of us who believe in strict colorblind equal opportunity had a minor setback, but one that would not have been reversed even if Justice Scalia were still on the court. The case, Fisher v. University of Texas, involved a white woman who was denied admission to the university. In 1997, the Texas Legislature passed a bill to guarantee automatic admission to the state university system to any Texas resident who graduates in the top 10 percent of his or her class. The legislation was passed with a Republican-dominated state Senate and signed by then-Republican Gov. George W. Bush in an attempt to increase minority representation in the elite university system by ensuring that students who attend high schools composed predominately of minorities have an equal chance of admission with those who attend predominantly white schools.
The effort came after a 5th U.S. Circuit Court of Appeals decision in 1996, Hopwood v. Texas, knocked down a race-based preference system that awarded extra points toward admission to minority group members. Abigail Fisher's claim challenged not the 10 percent plan directly but changes made to the plan by the university when it decided that the program hadn't achieved a "critical mass" of diverse students and adopted a "holistic" approach to include other factors -- for example, consideration of race, socio-economic status, language spoken at home and whether a student is from a single-parent family -- as part of a student's overall eligibility.
Justice Anthony Kennedy wrote the majority opinion that UT's program meets the strict scrutiny required whenever government takes race into account in setting admission policies. This was, regrettably, the first time Kennedy voted to uphold race as a factor in college admissions. But unless Kennedy had joined Justice Samuel Alito -- who wrote a stirring dissent -- the likelihood is that another liberal on the court would simply have deadlocked the decision 4-4 (Justice Elena Kagan recused herself because she had been an Obama administration solicitor general arguing for upholding the program in an amicus brief earlier), thus allowing the appeals court decision in favor of the university to stand. As it is, the decision still leaves open other challenges to less carefully crafted race-based programs in college admissions.
In other decisions, a divided 4-4 court punted on the issue of President Barack Obama's overreach on immigration, letting stand a lower court's decision to halt the administration's plans to defer deportation and grant work permits to some 5 million immigrants who are here illegally. Another conservative on the court might have allowed a majority to tackle the important issue of presidential authority, but even without the extra vote, the Obama plan did not survive.
So, too, the divided court managed to hand down decisions on other controversial matters that should give some hope to conservatives that all is not lost. In Utah v. Strieff, the high court upheld the admission of evidence collected in what might otherwise have been an illegal police stop. Four justices, including liberal Justice Stephen Breyer, sided with Justice Clarence Thomas in deciding that "attenuating circumstances," namely an outstanding warrant for the subject's arrest, allowed the police to search the suspect and that the evidence -- methamphetamine and drug paraphernalia -- could be used in his prosecution despite the so-called exclusionary rule, which disallows evidence collected improperly.
The court also dealt with cases involving the Hobbs Act and the Racketeer Influenced and Corrupt Organizations Act, both of which give broad powers to government to prosecute crimes impeding domestic or foreign commerce. The court also struck down Obama Department of Labor regulations that attempted to significantly broaden overtime requirements in the automobile dealership industry from what is mandated in the law. In each of these cases, conservatives and liberals were able to come together, albeit with some punting to the lower courts to decide substantive matters that a more conservative court might have settled. The result was less than perfect, but not quite the abyss many conservatives fear.
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