Affirmative Action

In Fisher v. University of Texas at Austin the Supreme Court ruled 4-3 that the University of Texas at Austin’s race-conscious admissions program is constitutional, as least of 2008, when this case was first brought. Justice Kagan did not participate in this case.

Even though this case arises in the higher education context, the Supreme Court has decided relatively few affirmative action cases so all are of interest to state and local governments that use race as a factor in decision-making.  

Perhaps the Supreme Court’s midterm has come and gone. The Court will only hear argument in 10 more cases and the term will end June 30. But the Court has issued decisions in less than half of the cases of the term so far. So now might be just the time to take stock of the Supreme Court’s term as it relates to the states.

The Court has already decided two big cases and has four more left to go. Only one of the six big cases (involving the Affordable Care Act birth control mandate) will have no direct impact on the states.

So the million dollar question (other than who will fill Justice Scalia’s seat) is what will happen to undecided Supreme Court cases heard or to be heard this term.

The short answer is it depends and in all instances isn’t entirely clear.

If a case isn’t 4-4 it will be decided as usual with only eight Justices.

If a case is going to be decided 4-4 the Court has two choices:  wait for the ninth Justice to join the Court and rehear the case or issue a non-precedential 4-4 decision that affirms the lower court decision.

In today’s Supreme Court oral argument in Fisher v. University of Texas at Austin, involving race-conscious college admissions, the Court indicated it might send the case back to the lower court for a second time, meaning that the Supreme Court could ultimately hear it for a third time.

Per Texas’s Top Ten Percent Plan, the top ten percent of Texas high school graduates are automatically admitted to UT Austin, which fills about 80 percent of the class. Unless an applicant has an “exceptionally high Academic Index” he or she will be evaluated through a holistic review where race is one of a number of factors.

While it would be hard to top the Supreme Court’s last term the October 2015 term is one to watch not just because the Court has accepted numerous cases on controversial topics. Adding to the intrigue, many of the Court’s decisions this term are likely to be discussed by the 2016 Presidential candidates as the election heats up, including a number of cases affecting the states. Here is a preview of the most significant cases for the states that the Court has agreed to decide so far. 

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