Supreme Court Hears Oral Arguments on Affirmative Action, Significant Redistricting

In December, the U.S. Supreme Court heard oral arguments in two of its most significant cases of the term so far for states. It is difficult to predict what the court will do based on oral arguments but it is the only clue the court offers.  
Affirmative Action
In Fisher v. University of Texas at Austin, involving race-conscious college admissions, the court indicated during oral arguments that it may 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 10 percent of Texas high school graduates are automatically admitted to the University of Texas Austin, or 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. 
UT Austin denied admission to Abigail Fisher, a white Texan who did not graduate in the top 10 percent of her class. She sued, claiming UT Austin’s use of race in admissions violates the 14th Amendment’s Equal Protection Clause. She argued that using race in admissions is unnecessary because in the year she applied, UT Austin achieved a 21.5 percent minority enrollment rate.    
The court has held that the use of race in college admissions is constitutional if race is used to further the compelling government interest of diversity and is narrowly tailored. In the Supreme Court’s first hearing of the case, the court held that the Fifth Circuit, which upheld UT Austin’s admissions policy, should not defer to UT Austin’s argument that its use of race is narrowly tailored.  
When the Fifth Circuit reviewed UT Austin’s affirmative action plan, it concluded that it is narrowly tailored; Fisher again appealed to the U.S. Supreme Court. 
As Lyle Denniston pointed out in his posting on SCOTUSblog after the court agreed to hear this case for the second time, it was unclear what the court would focus on at the argument and ultimately in its opinion.  
The UT Austin’s attorney and the solicitor general, arguing on behalf of the United States in support of the holistic review including race, tried to focus the court’s attention on their argument that holistic review using race was necessary because in the years when UT Austin did not use race as a factor (because it was prohibited by a later overturned lower court case), minority enrollment went down. 
Chief Justice Roberts and Justices Alito and Kennedy expressed concern that there wasn’t enough information in the record to determine whether using race as a factor in holistic review was really necessary. Justice Alito wanted to know if minority students admitted through holistic review actually enrolled in classes that were lacking in diversity, thereby increasing classroom diversity, and had characteristics that minority students admitted through the Top Ten Percent lacked. It did not appear the record contained this information.     
All three of the attorneys tried to address how many students would have been admitted using holistic review if race wasn’t a factor. UT Austin’s attorney pointed out it is hard to know given that holistic review involves weighing many factors. The solicitor general suggested the court should compare the year with the highest number of minorities admitted through holistic review where race wasn’t a factor with the next three years where race was a factor. 
Beyond the need for more diversity, the argument covered a gamut of other topics from whether affirmative action should end in 2008--as the court suggested 12 years ago in a previous case–to whether students really benefit from racial diversity in a physics class. 
Texas, like all other states, redistricts based on total population data from the census. A number of Texas voters argue that state legislative districts deviate from the ideal by as much as 45 percent when voting population is used. During oral arguments in Evenwel v. Abbott, Justice Kennedy--frequently the court’s “swing” vote in high-profile cases--asked whether both metrics can be used to comply with one-person, one-vote. 
Since the U.S. Supreme Court in the 1964 case Reynolds v. Simsheld that state legislative districts have to be roughly equal in population, a question has remained: What population are we talking about?
The attorney arguing that voting population should be the required metric met with resistance from all of the court’s liberal justices. 
Justice Sotomayor brought up the policy argument that elected officials should represent everyone not just voters and the practical problem of the lack of accurate voter records. Justice Kagan pointed out that total population is favored in the U.S. Constitution; House of Representative seats are apportioned by total population. Justice Ginsburg, ever the feminist, asked whether before women had the right to vote states had mistakenly included them in redistricting. 
Texas argued that as a matter of state sovereignty states should be able to continue to decide which metric they use. The conservative justices, with the exception of normally vocal Justice Scalia, who asked no questions, expressed skepticism about using total population when it created significant disparities.
Justice Kennedy asked why states couldn’t be required to rely on both total population and voter population. The United States’ attorney argued that if jurisdictions had to rely on both population metrics they would have to do so at the expense of other traditional redistricting considerations such as compactness, not dividing political subdivisions, etc. 
A fair amount of the argument concerned whether the American Community Survey, which is an ongoing statistical survey that samples a small percentage of the population every year, could be used reliably to determine voting population. In a nod to how this issue affects local government, the United States’ attorney emphatically argued that even if this survey produces adequate information for states, it does not do the same for local governments.  
In sum, while it is noteworthy that Justice Kennedy, in particular, is interested in finding a compromise between a mandatory voter population metric and a voluntary but widely accepted total population metric, it is not clear that the identified compromise will work or that the majority of the court is interested in adopting it.
Looking Ahead
So far the Supreme Court has accepted three other cases of significant interest—two of them affect the states directly. 
On Jan. 11, the court will hear argument in Friedrichs v. California Teachers Association, where it will decide whether public sector “fair share” laws requiring nonmembers to pay union dues are unconstitutional. 
In March, the court will hear argument in Whole Women’s Health v. Cole, involving a challenge to Texas’s admitting privileges and ambulatory surgical center requirements for abortion clinics. 
Not yet scheduled for argument—and not directly affecting states—is a challenge by religious nonprofits to completing a form that allows them to object to providing contraception coverage to women as required by the Affordable Care Act. 
On Jan. 15, the court will decide whether to grant, deny or postponed petitions challenging the Obama immigration executive order and the Affordable Care Act for failing to originate in the House of Representatives, in violation of the Origination Clause.