The University of Texas’ race-conscious admissions program was not expected to have a good day in front of the Roberts Court today, and the conservative justices did little to change these expectations in today’s Fisher v. University of Texas hearing. At one point, Justice Scalia accused UT of employing armies of race counters in some kind of “affirmative action department.” Justice Kennedy falsely accused UT of creating an admissions program where “race counts above all.” Justice Alito spent much of the argument laying an elaborate trap intended to trick the university’s lawyer into saying that Texas’ nuanced admissions program is akin to a constitutionally forbidden racial quota. By the end of the argument, the primary open question appeared to be whether the five conservatives would overrule the landmark racial diversity decision in Grutter v. Bollinger, or, as Justice Sotomayor characterized the plaintiff’s argument, simply “gut it.”
The most interesting part of the argument came at the beginning, however, and it had little to do with the merits of this case. Abigail Fisher, the plaintiff in this case, was a marginal applicant to the university. Her 1180 SAT score is far from distinguished among UT students, and her 3.59 high school GPA places her well below the university’s median. In its brief, UT claims, quite plausibly, that she would not have been admitted even if the university’s admissions policy took no account of race.
The reason why this is relevant is because the Supreme Court has long held that a plaintiff is not allowed in federal court unless they have experienced a harm that is “actual or imminent” not “conjectural” or “hypothetical.” Fisher’s claim that she was kept out of UT merely because she is white is conjectural at best, and thus it is not at all clear that she should be allowed to sue the university in the first place.
Of course, there is a good reason why the Supreme Court should treat this inquiry liberally and allow Fisher to sue. It is almost axiomatic that only a marginal or worse applicant will sue to challenge a university’s admissions policy — strong applicants will be admitted in the first place — so if the Supreme Court holds that Fisher cannot sue, it is unlikely that a new plaintiff will step forward that has significantly better credentials. The courts should not be prevented from considering whether something is unconstitutional because of restrictions on who is allowed to sue that are so strict that they prevent anyone from bringing a case.
There was a time when the Supreme Court understood this reality, but that time has long passed. The Roberts Court, by contrast, has been more than eager to shut off constitutional claims they disagree with by simply preventing anyone from suing in the first place. Indeed, the Court’s five conservatives have taken significant strides towards making it impossible for many unconstitutional government establishments of religion to ever be challenged by anyone.
By, of course, Abigail Fisher is not a religious minority objecting to government subsidies of religious schools. She is a white woman attacking a major conservative bugaboo — affirmative action. Justices Ginsburg and Sotomayor both did their best to point out the reasons why Fisher might not be an appropriate plaintiff to bring this suit, but the conservative majority brushed off their concerns.
This brush off could have serious consequences if Fisher wins her case, which she appears likely to do. What happens when every marginal white applicant who was denied admission to UT in the last year sues claiming that they should be allowed in? For that matter, what happens if thousands of applicants who are obviously unqualified join this same lawsuit? If the Supreme Court does not clarify exactly who is allowed to file these kinds of lawsuits or exactly what remedies they are entitled to, the University of Texas may find itself forced to retroactively admit many more students than it can accommodate.
In the end, however, the five conservatives appeared unlikely to care. Nor did they seem especially concerned with the arguments supporting the merits of UT’s claims that I laid out elsewhere. The University of Texas’ admissions policy appears no more likely to stand today than it did yesterday.