The Fisher Oral Argument: Why Affirmative Action Might Endure

Abstract

Most readers are by now familiar with Fisher v. Texas, the case from the current term in which the Supreme Court must determine the legality of the University of Texas's narrow consideration of race in admissions. In a prior article, I argued that the facts of Fisher provide an almost perfect testing ground for fleshing out, and perhaps resolving once and for all, the enduring debate between the respective jurisprudential aspirations of diversity and colorblindness in a society that, perhaps paradoxically, increasingly values both.' This short Essay discusses Fisher from a different perspective, based on my observations while attending the Fisher oral argument on October 10, 2012. As will be shown below, it is unclear whether the Supreme Court views the implications of Fisher in precisely the manner that I do, but there are certain points of emphasis and disagreement both the Justices and I acknowledge as core to resolving this case.

This Essay proceeds in three parts. Part I provides some background about Fisher, describing the manner in which, as I argue in my prior article, it fits squarely within the longstanding debate regarding the relative merits of diversity and colorblindness. Part II discusses what I view as the argument's most persistent and important points of emphasis, which include the concept and definition of “critical mass,” when and in what manner judges should defer to university administrators, and the point at which affirmative action will no longer be necessary. Part III describes more subtle features of the argument that struck me as an observer, particularly the ambiguity over whether or not this case represented a direct challenge to Grutter and the occasional, yet crucial, moments during which the argument was geared toward influencing Justice Kennedy, the likely swing vote in this case. I speculate as to how the Court will resolve this case in closing.

Keywords: Fisher v. Texas, Fisher, admissions, College Admissions, Grutter v. Bollinger