Next week, Chief Justice John Roberts will have the chance to achieve one of his longtime dreams — ending affirmative action in university admissions — if he can only obtain the votes of his four fellow conservatives. Since ascending to the Supreme Court, Roberts has made eliminating much of the legal infrastructure intended to address America’s legacy of discrimination a personal mission, and he’s already succeeded in undercutting lawmakers’ ability to fight public school segregation and to cure racial voter suppression. Fisher v. University of Texas at Austin, a case the Roberts Court is hearing for the second time, could easily allow Roberts to stick a knife in race-conscious policies and leave them to die.
Except that, in order to do so, Roberts will need to betray another cause that he advocated with considerable passion prior to joining the bench. The Court’s Standing Doctrine, a doctrine that prevents plaintiffs from using federal courts as a general forum to air their grievances, promotes “a conception that judicial power is properly limited in a democratic society,” according to one of the few scholarly articles Roberts published while still in private practice. Without such a limit on the judiciary’s power, Roberts explained, courts would be forced into “a role for which they are ill-suited both institutionally and as a matter of democratic theory.”
Standing, in short, is the requirement that federal plaintiffs must have suffered an injury that can actually be fixed by a favorable court decision. As the Supreme Court explained in Lujan v. Defenders of Wildlife, the opinion Roberts praised in his 1993 law review article, a plaintiff must not simply show that they’ve been injured by the party they are suing, they must show that “‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.'”
Which brings us back to the Fisher case. The attorneys for Abigail Fisher, the sole plaintiff in this attack on affirmative action, failed to take actions other affirmative action plaintiffs took to preserve their right to be in court in the first place — and this may prove their undoing now that Fisher is before the justices once again.
A Case About Nothing
Fisher challenges one part of the University of Texas’s two-tiered admissions program. The majority of UT’s students are admitted through a “Top Ten Percent Plan,” which automatically admits Texas students in the top ten percent of their high school class. This plan effectively leverages housing segregation in Texas to diversify much of the student body, since students in the top ten percent of a public school that almost entirely serves people of color will generally be people of color themselves. At its peak, over eighty percent of students were admitted through the Top Ten Percent Plan, which is not being challenged in Fisher.
The remainder of UT’s class is selected through “holistic review” a process that “looks past class rank to evaluate each applicant as an individual based on his or her achievements and experiences.” Under this process, race, a low-income background and similar factors can give applicants a slight edge over similarly qualified applicants. Ms. Fisher, who is white, claims that the university cannot consider race even in this limited capacity.
Her quest to get the Supreme Court to agree with her has been long, however. She was originally denied admission by UT in 2008 and filed this lawsuit shortly thereafter. Though the Court’s conservative majority was widely expected to rule in Fisher’s favor after they first heard her case in 2012, they instead surprised most court-watchers by sending the case back to the conservative United States Court of Appeals for the Fifth Circuit. If the conservative justices expected the Fifth Circuit to strike down UT’s admissions policy for them, however, they were disappointed. A divided panel of that court upheld the program again in 2014. It’s now 2015, and Fisher’s college career is over. She graduated from Louisiana State University in 2012.
That, combined with errors by her lawyers, may prove fatal to her case. As UT argues in its brief, Fisher’s request to be admitted in the University of Texas became moot upon her graduation from LSU — she no longer seeks to be admitted into an undergraduate program now that she has a bachelor’s degree. Recall that a plaintiff in not allowed in court unless they’ve experienced an injury that can be “redressed by a favorable decision.” But a favorable decision by the Supreme Court will not allow her to go back in time and attend UT.
Alternatively, Fisher also seeks “monetary damages in the form of refund of application fees and all associated expenses” — specifically, the $100 she paid when she applied to UT. Yet the university also makes a strong case that this injury cannot be addressed by a favorable decision. “While obtaining a $100 damages award might provide some ‘psychic satisfaction,'” to Fisher, UT explains in its brief, the Constitution requires her to show “that the requested relief will redress the alleged injury.” Here, however, the alleged injury is the fact that she was not admitted into the university (or, alternatively, the fact that she was evaluated under an allegedly unconstitutional process), but the $100 fee bears no relationship to this injury. To the contrary, she “would have paid the application fees even if UT had not considered race at all—and even if she had been admitted.”
Lawyers in other major cases challenging affirmative action avoided similar problems by bringing a class action “on behalf of future applicants,” thus allowing them to continue to represent these future applicants even after their original plaintiff graduated. But Fisher’s lawyers failed to jump through this procedural hoop. That leaves them without a client who has experienced a redressable injury.
The Way Out
If a majority of the Court decides that Fisher no longer has standing to pursue her case, that could delay a Supreme Court decision on the merits of affirmative action for at least another year while opponents of such admissions programs work to bring another case up to the justices. It’s an open question whether Roberts will care enough about the “conception that judicial power is properly limited in a democratic society” to delay resolution of a major racial issue for this long — and, indeed, he’s previously indicated that he will not. The question of whether Fisher proves to be a major case or a minor jurisdictional hiccup, however, may not be up to Roberts.
Justice Anthony Kennedy is very conservative on race, but he has shown more capacity for nuance on this topic than his four fellow conservative justices. Last June, for example, Kennedy surprised many Court watchers by casting the key fifth vote to save longstanding protections against housing discrimination. Kennedy also dissented in Grutter v. Bollinger, the 2003 Supreme Court decision preserving affirmation action, so he remains a very likely vote to kill race conscious admissions programs in Fisher. Nevertheless, he’s shown some trepidation about actually handing down a majority decision cutting off admissions programs like the one at UT.
During the Court’s 2012 term, the last time that Fisher’s case was before the justices, the Court initially voted 5-3 in favor of Fisher (with Justice Elena Kagan recused), according to Joan Biskupic’s book Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice. After Justice Sonia Sotomayor penned a blistering dissent, however, Kennedy agreed to a compromise that sent the case back down to the Fifth Circuit. “Kennedy,” Biskupic says, “wanted to lower the temperature among the justices and he was open to a position that would draw as many justices as possible to an opinion.” Eventually, he got that wish. Seven of the eight justices hearing Fisher I joined the compromise opinion.
Fisher graduated from LSU shortly before her case reached the Supreme Court the first time, and the Court was not moved by the argument that she lacked standing in Fisher I. Nevertheless, if Kennedy still wishes to avoid a hot war among his colleagues, the standing argument gives him a way out. He wouldn’t even have to depart from the Court’s previous standing precedents in order to take it.