The new case challenging affirmative action, which still has to be scheduled for argument next term, is the direct progeny of Grutter.
In the new case, more than three-fourths of freshmen enroll at the University of Texas under a state law that gives automatic admission to students in the top 10 percent of their high school classes. For the rest, the school considers a number of factors, including race.
Two white students denied UT admission under the policy challenged it in federal court.
A three-judge appellate panel upheld the admissions policy, and the full 5th U.S. Circuit Court of Appeals, one of the most conservative in the country, refused to rehear the case by a vote of 9-7.
The majority said UT's admissions program was "narrowly tailored," as required by the 2003 Supreme Court precedent.
The new case accepted by the high court was brought by Abigail Fisher, one of the two white students, who applied to the school in 2008. Fisher was not entitled to admission under the Top 10 Percent Law, but her academic credentials exceeded many of those of non-Top 10 students who were accepted, her petition said.
Even the appeals court opinion in the UT case warned that affirmative action cannot last forever.
"A university may decide to pursue the goal of a diverse student body, and it may do so to the extent it ties that goal to the educational benefits that flow from diversity," the opinion said. "The admissions procedures that UT adopted, modeled after the plan approved by the Supreme Court in Grutter, are narrowly tailored -- procedures in some respects superior to the Grutter plan because the university does not keep a running tally of under-represented minority representation during the admissions process. We are satisfied that the university's decision to reintroduce race-conscious admissions was adequately supported by the 'serious, good faith consideration' required by Grutter. Finally, it is neither our role nor purpose to dance from Grutter's firm holding that diversity is an interest supporting compelling necessity. Nor are we inclined to do so."
In a "specially concurring" separate opinion, U.S. Circuit Judge Emilio M. Garza said he joined in the prevailing opinion because it adhered, as it should, to the Supreme Court's majority opinion and precedent in Grutter.
But Garza used his separate opinion to attack the Grutter ruling root and branch, foreshadowing some of the argument that may be used in the new Supreme Court case next term.
"The idea of dividing people along racial lines is artificial and antiquated," Garza wrote. "Human beings are not divisible biologically into any set number of races. A world war was fought over such principles. Each individual is unique. And yet ... governmental decision-makers are still fixated on dividing people into white, black, Hispanic and other arbitrary subdivisions. ... When government divides citizens by race, matters are different. Government-sponsored discrimination is repugnant to the notion of human equality and is more than the Constitution can bear."
Even more ominous for the survival of affirmative action is the changed arithmetic at the Supreme Court.
From the outset, liberal Justice Elena Kagan has recused, or withdrawn, from the case, reducing the liberal bloc to three.
In Grutter, Justice Anthony Kennedy joined the three conservatives, the late Chief Justice William Rehnquist, Justice Antonin Scalia and Justice Clarence Thomas, in dissent, but also wrote separately. "Preferment by race, when resorted to by the state, can be the most divisive of all policies," Kennedy wrote in 2003, "containing within it the potential to destroy confidence in the Constitution and in the idea of equality."
Now the balance has shifted on the high court. Some of the justices who made up the Grutter majority and dissent have gone, but the conservatives have emerged triumphant.
O'Connor, of course, is gone, retiring in 2006. To make up the Grutter five-member majority, O'Connor, a moderate conservative, was joined by liberal Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.
Souter and Stevens are retired, succeeded by liberal Justices Sonia Sotomayor and Kagan for a wash.
Rehnquist died in 2005, to be succeeded by Chief Justice John Roberts, another reliable conservative. Scalia, Thomas and Kennedy remain on the court.
But O'Connor was succeeded by Justice Samuel Alito, another consistent hard-line conservative in the Rehnquist mold.
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