It's been 150 years since the Civil War and passage of the 14th and 15th Amendments, and the Supreme Court is still trying to get it straightened out.
Fisher vs. University of Texas
Background: Fisher, a white woman, did not get admission to UT Austin, which uses race as one factor of many when deciding about 15% of each freshman class. (85% are admitted based on solely on rank in their high school class.) Her credentials were reasonable but not outstanding, and it is not clear she would have gained admission even under criteria that completely excluded race as a consideration. Nevertheless, Fisher claims that the use of race violated her right to equal protection under the law.
The SC made a bad mess of this in their prior work, with confusing plurality decisions with overlapping concurrences and dissents. The gist of it appears to be this:
a. Under Regents of the University of California vs. Bakke, a university may not have a quota system. However...
b. Under Grutter vs. Bollinger, race may be considered in a "narrowly tailored way" to further a compelling interest. The decision also classifies diversity as a compelling interest. However....
c. Under Gratz vs. Bollinger, the narrowly tailored way cannot involve "predetermined point allocations".
Further complicating matters is a recent 6th Circuit decision (Coalition to Defend Affirmative Action v. Regents of the University of Michigan) that states may not ban state-owned universities from using racial preferences. Apparently the decision level matters.
Forecast: Elena Kagan is recused from this one, and the initial questions by Ginsburg, questioning whether Fisher even had standing, show that the three remaining liberal justices would prefer that this case not get decided right now. The question is whether things will stay as they are or whether Grutter will get overturned/narrowed. My prediction is that racial preferences will be continue to be permitted, but some kind of ugly multipart test will be imposed, making things more complex rather than simpler.
My Take: I have no real preference on the affirmative action issue itself, in my opinion traditional discrimination is no longer a major problem in university admissions, and reverse discrimination even less so. Some people will be admitted and others rejected on some basis, and "diversity" has neither more nor less protection than "athletic ability" or "academic ability" - all constitute ways to discriminate one applicant from another, and all equally violate (or not) the text of the 14th amendment, which does not mention race. If you're going subject diversity decisions to strict scrutiny in court, why not academic ability decisions as well?
But as a university faculty making admission decisions, I want clarity on the law. That 6th Circuit decision in Michigan, banning bans on racial preferences, is poorly thought out. As much as I'd like to do our smoke-filled room thing without higher level interference, insulating us from our employers' authority sets up all kinds of ambiguities. Who's allowed to make the call on whether to use preferences? Faculty committee? Dean? President? Regents? State Education Board? How high does it go? Not as high as the state constition or a ballot proposition, according to the 6th Circ.
The SC is also to blame. That distinction between Grutter and Gratz is very hard to parse. When weighing many factors in a complex decision, the typical thing an educator does is make some kind of rubric, with columns for the different factors, and a rating of applicants on each factor. Apparently the law is that I can give a guy an "Excellent" or a "Good" on diversity but if I translate that into a "9" or "8" it's a problem. What if I translate it mentally, without writing it down? What if we don't have a rubric written down, but imagine one when making a subjective decision?
The Supremes ought to straight up allow, or disallow, racial preferences, and quit trying to split the difference. And if they allow them, quit dancing around trying to make the language race neutral, and just flat state once and for all which groups may be preferred.
Shelby County vs. Holder
Background: Most election law and procedure in the US is decided at the state level. Under the Voting Rights Act, in the Southern US, and a few patches elsewhere, any changes to law or procedure have to be pre-cleared with the US Department of Justice before they can take effect. The geographical coverage of the law is fixed and not tied to any current behavior, good or bad, by the local authorities.
Shelby County argues that there ought to be some point at which they can get clean and get back the same level of autonomy that other states/counties enjoy, and that they have in fact reached that point.
Forecast: This one hasn't reached oral arguments yet. Kagan is on, so the liberal wing has all four of their votes. Giving Shelby County what they want involves overruling Congress, not just a state legislature or lower court, and children - even the justices themselves - have been taught from middle school on that the Voting Rights Act is one of our nation's major accomplishments. I predict Shelby loses 4-5.
My Take: This case is backwards. The lawsuit should have been filed by voters in (for example) Ohio, demanding that under equal protection the VRA should cover them as well. There is no reason that Ohio should be allowed to run racist elections just because they were on the right side 150 years ago.
Interestingly, election law is one of the very few areas in which Congress has understepped its authority, at least with respect to elections for senator or representative. The Constitution gives them authority over federal elections, and they ought to use it to protect all voters rather than make it selective.
The court ought to state that the geographical coverage violates equal protection both for uncovered and covered voters, and order the DoJ to decide whether to apply preclearance to everyone or no one. Given recent irregularities, "everyone" is the right choice.