It’s rare when SCOTUS delivers a decision ordering a case back to a lower court for review that it garners the same attention it received when it was in the SC. But, this being a potentially decisive case about affirmative action programs in public universities and colleges, – one that brought Justice Sandra Day O’Connor into the SC back in June of this year to keep watch over her landmark 2003 decision (Grutter v. Bollinger) – it’s hardly a surprise. So critical Fisher v. the University of Texas at Austin is to future college applicants and public universities that the same attorneys who argued the case last year in the SC stayed on to continue the work at the 5th Circuit. On Wednesday, November 13th, they, along with the case’s namesake Abigail Fisher and the man who lobbied for the case to get into SCOTUS, Edward Blum, were all in court, again.
According to a piece from Joan Biskupic in Reuters, the decision could come down to one swing vote on the 3-judge panel. “During an hour of arguments, it appeared that the three- judge panel, which previously had ruled unanimously in favor of the university, might splinter. Judge Emilio Garza, an appointee of Republican President George H.W. Bush, appeared sympathetic to Rein’s claim that the university cannot justify using race in its decisions. Judge Patrick Higginbotham, an appointee of Republican President Ronald Reagan, implicitly defended the university. The third judge, Carolyn Dineen King, appointed by President Jimmy Carter, a Democrat, offered little clue in her few questions as to whether she might reverse her prior vote for the policy.”
This is a unique situation and reveals much about just how concerned both advocates and opponents of affirmative action are. As we’ve covered in previous posts, another affirmative action case (Schuette v. CDAA) was heard by the Court last month and will decide the future of ballot initiatives terminating AA policies at state-levels. Michigan, California, Arizona, New Hampshire, Nebraska, Florida, Oklahoma and Washington all have policies in place that make the use of affirmative action in either hiring or acceptance practices at public schools unlawful. We may get decisions on both cases from SCOTUS and the 5th Circuit as early as January. In the mean time, read this great piece by Joan Biskupic of Reuters for more details about the action in the 5th this week. We love Joan. You should too.