I would like to buck the conventional wisdom, but I agree with everybody that the grant of cert in Fisher v. UT Austin is almost certainly the end of affirmative action in higher education. Certainly, four of the necessary votes are not in question:
The bad news is that Kagan’s recusal probably doesn’t matter because her vote will be irrelevant. Everything points to there being five votes to overrule Grutter. Antonin Scalia and Clarence Thomas are sure votes—not only did they dissent in Grutter, they have consistently held that all affirmative action programs are unconstitutional (even though this is flagrantly inconsistent with the “originalism” they claim guides their interpretation of the Constitution). Samuel Alito and John Roberts were not on the Court when Grutter was decided in 2003, but the 2007 Parents Involved ruling, authored by Roberts and joined by Alito, is an ominous sign. Chief Justice Roberts’s Young Republican debate society koan “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race” strongly suggests that the two George W. Bush appointees will adhere to the Scalia/Thomas absolutist position.
I think this is a good time to cite Stevens in Parents Involved:
There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education. The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.
The Chief Justice rejects the conclusion that the racial classifications at issue here should be viewed differently than others, because they do not impose burdens on one race alone and do not stigmatize or exclude…
If we look at cases decided during the interim between Brown and Adarand, we can see how a rigid adherence to tiers of scrutiny obscures Brown’s clear message. Perhaps the best example is provided by our approval of the decision of the Supreme Judicial Court of Massachusetts in 1967 upholding a state statute mandating racial integration in that State’s school system. Rejecting arguments comparable to those that the plurality accepts today, that court noted: “It would be the height of irony if the racial imbalance act, enacted as it was with the laudable purpose of achieving equal educational opportunities, should, by prescribing school pupil allocations based on race, founder on unsuspected shoals in the Fourteenth Amendment.”
Admittedly, I don’t agree with the vote-counting at the end of Stevens’s dissent (“It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”) After all, William “Plessy was right and should be reaffirmed” Rehnquist was on the Court then, and he’s always been at the forefront of tying to stand Brown on its head. But, otherwise, Stevens is right. Alas, on a Court dominated by Republicans the silly idea that as soon as a centuries-old caste system is formally disbanded formal equality is sufficient to provide real equality of opportunity will hold sway.