After Supreme Court Ruling On Affirmative Action, What's Next?

David Savage, Supreme Court correspondent, Los Angeles Times and Chicago Tribune

The Supreme Court issued its decision Monday in Fisher v. the University of Texas, which challenged the constitutionality of the use of affirmative action in college admissions. The court sent the case back to the lower court to apply "strict scrutiny" to the University's admissions policy.

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NEAL CONAN, HOST:

This is TALK OF THE NATION. I'm Neal Conan in Washington. We're going to focus most of this hour on the United States military and look ahead at what kind of changes to anticipate after Iraq and Afghanistan, but first to the Supreme Court. Earlier today, the justices chose not to issue a sweeping opinion on affirmative action. In a closely watched case, Fisher versus the University of Texas, the court ruled seven to one to send the case back to a lower court, but on the way it also made it clear that any use of racial preference will come under a more skeptical eye from now on.

In a case that centered on admissions policies at the University of Texas, Justice Anthony Kennedy wrote for the majority, quote, "the reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity."

Some analysts call the decision a compromise rather than a punt, but the ruling leaves open many questions about what's next for affirmative action. We're joined now, as we often are, by David Savage, Supreme Court correspondent for the Los Angeles Times and Chicago Tribune newspapers. He joins us by phone from his office here in Washington. David, always good to have you with us.

DAVID SAVAGE: Hi Neal.

CONAN: Waiting a long time for this decision on a case the justices seemed to have picked to issue a sweeping ruling on affirmative action.

SAVAGE: Yes, this is one that the most surprising aspect of it is what they didn't do. When this case came up for argument in October, it sure looked like the case that the conservatives had wanted to basically say no to affirmative action. Five of them are very familiar with this subject and have in the past been very skeptical of the idea of using race.

So the first surprise is why it took so long, and then the second surprise is sort of what they finally came up with, which is - you described it as sort of a skeptical tone to - sends it back to a lower court and says the university must show that affirmative action is really necessary, there's no other so-called race-neutral alternative that would bring about diversity on campus.

But I think from the larger perspective is most colleges and universities would sort of view this with sort of a sigh of relief and say, well, this will not force us to change anything.

CONAN: So what happens when it goes back to a lower court?

SAVAGE: My guess is that the lower court will - I think there's a good chance they will reject the Texas plan, but it's because of something specific to Texas. Texas has this so-called top 10 law that says that if you are a - in the top 10 percent of your high school graduation class, you can get into the University of Texas. And that law, over time, has led to a steady influx of Hispanic and to some degree African-American students.

So as each year goes on, it's sort of harder to argue that the university really needs affirmative action in order to bring about diversity on campus.

CONAN: So in that case, would it be appealed back up to the Supreme Court?

SAVAGE: It could be, but I think it would no longer be, you know, a national case that we're all watching. In other words, it's something that's particularly - Texas has this law that seems to have worked in a way that not many other states could do the same thing.

I will say there's sort of a moderate, liberal view is that a lot of universities, state universities in other - Florida, North Carolina, whatever, ought to try something like this, that is recruit or admit the very best students in some of the, you know, poorer, lower-income high schools in the state.

And that's a way to - you're rewarding students for good performance. You're bringing about diversity, and you're not having so much weigh on SAT scores and test scores.

CONAN: Some people would say you're setting a lot of those kids up for failure, though. They'll be admitted, but they won't make it past the freshman or maybe the sophomore year.

SAVAGE: That's actually what people thought in Texas, Neal, eight or 10 years ago, in the late '90s when this was really getting underway. People said a lot of these students won't do well. But in fact the graduation rate at the University of Texas has been going up steadily, and when I went down there in the fall, and a lot of these admissions people admitted that they were pleasantly surprised that those students who were good students in high school, did well in high school, may not have great test scores, nonetheless did just fine at the University of Texas.

CONAN: Now is this truly a compromise, seven to one?

SAVAGE: Yes, I think the interesting backstory here is Chief Justice Roberts. I've been writing about this a little bit, that in the last couple years, John Roberts has had a choice, as do - he's a conservative guy. Do you join the conservatives for big, sweeping rulings, Citizens United is one that you and everyone remembers, a very broad ruling, five to four, allowing corporate - that ruling set off a real backlash.

And Roberts has really wanted to avoid fractured, five-to-four rulings that go very far. He's been very interested in finding sort of the middle ground, and this is a classic example of they found a middle ground that the conservative justices and the liberal justices could agree with, and, you know, decide something in a way that is not an earthquake in either way.

CONAN: People will look at that number, seven to one, and realize it does not add up to nine. Justice Kagan did not participate in the case. Do we know why?

SAVAGE: Yes, she was in the - she was the solicitor general the first year of the Obama administration. This case was under appeal. And her rule has been that if she had played any part in approving appeals or doing anything on a case, she will not sit on it when it reaches the Supreme Court. So that's why she stayed out of this one.

CONAN: And the one who dissented and why?

SAVAGE: Ruth Ginsburg dissented, and her view was that the top 10 plan is a race-conscious plan after all. It was done to improve diversity on campus. And her view was that we ought to just go ahead and approve the use of race in situations like this, and she would have just flat out upheld the University of Texas policy.

I thought it was quite interesting that Sonia Sotomayor and Justice Stephen Breyer joined sort of, you know, this moderate conservative bloc to say let's send this back for another close look by the lower court.

CONAN: And is this going to encourage changes at other state universities? Is this going to encourage more lawsuits?

SAVAGE: I think it's hard to gauge. If you were one of the conservatives who wanted to challenge affirmative action, I would think this is a little depressing. You spent years trying to get a case at the Supreme Court, and you don't - you know, it's not much of an incentive to do it again.

I think it may encourage a few big states, as I mentioned, to try to move away a little bit from weighing race and trying to find a way, like this top 10 law, rewarding top graduates, find a way to bring in more minority students but without giving an explicit preference in the admissions policy.

CONAN: Now some will remember there was another case I think from the University of Michigan that was also broadly about affirmative action. Does the Texas case supplant that, or are we awaiting a decision on the Michigan case, as well?

SAVAGE: We're waiting a decision on the Michigan case, as well. That will be argued in the fall. The lower court decided that on a different basis, basically said that they threw out - the lower court threw out a state proposition, a ballot measure that prohibited affirmative action in Michigan. And so that's a different legal issue, and the court's going to hear that case and decide it next year.

CONAN: Well, a couple of other interesting cases they picked up for next year announced today, one of them McCullen v. Coakley, which takes on the issue of protestors at abortion clinics. And as I understand it, their case argues that the law in Massachusetts that prohibits them from barring entry to - they have to be a certain distance away from entries to abortion clinics, that violates their right to free speech.

SAVAGE: Yes, this is sort of an old issue that the court dealt with about 10 or 12 years ago and sort of settled on a - and that sort of seemed like a compromised position, which was to say you could have a buffer zone around the entrance to an abortion clinic, so patients and doctors could go in and out, but the protestors could stand on the sidewalk and hold signs or protest.

And now the court's going to revisit a Massachusetts law that does something like that, and my impression - my sense of it is is that the conservative justices think this is a little bit unfair to abortion protestors, that they should be able to walk up to somebody on the sidewalk and say here's a pamphlet, or you should reconsider your decision. They're going to allow, I think, a little more leeway for sidewalk protestors to speak to patients.

CONAN: Another case that will be also closely watched, NLRB versus Noel Canning, and that's about the president's power to so-called recess appointments.

SAVAGE: Yes, that's a big sort of a political - in a sense, Washington political story. It's a big deal for the Obama administration because the House Republicans have used their minority and the filibuster rule to block a vote on a lot of Obama nominees for agencies like the National Labor Relations Board and this Consumer Financial Protection Board.

Obama turned around and made a recess appointment when the Senate was out for three weeks early January of 2012. A lower court ruled that you can - really narrowed the president's recess power and said only when the Senate has formally adjourned after two years can the president make a recess appointment. So President Obama's lawyers appealed to the Supreme Court, said you should reverse that decision. So that's what they're going to take up in the fall.

CONAN: And it's a sticky case because the administration uses this frequently, and the previous administration did, as well, this ability to make recess appointments over the objections of a faction in one of the opposite party in the United States Senate. But nevertheless, without this power, it's going to be extremely difficult to fill some of those jobs.

SAVAGE: Absolutely. This - as you said, for a long time, presidents have done this as sort of an emergency way to get around a recalcitrant Senate. The situation is particularly bad now because, as I say, the Republican minority has blocked a lot of people not because there's anything wrong with the nominees, it's they just don't like the agencies. They don't like the NLRB, and they don't like this Consumer Protection Bureau.

So the president has no way to get somebody appointed to those offices, and if the court says you can't do it as a recess appointee, then the president can't put any one of his appointees sort of in charge of the agency.

CONAN: Well, they're still awaiting, we are still awaiting, decisions in three other big cases, on the Voting Rights Act, on gay marriage in California and on the Defense of Marriage Act. And the court announced today that they are adding tomorrow as another decision day.

SAVAGE: Yes, that's right. They'll have decisions tomorrow, and I assume, and maybe I hope, Wednesday or Thursday. There must be five or six to go, and as you said, there's at least three big decisions. So they'll have decisions tomorrow and then I assume one other day this week.

CONAN: David Savage, we'll talk to you then.

SAVAGE: Thanks, Neal.

CONAN: David Savage, Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune. He joined us from his office here in Washington. After a short break, we'll switch gears and look ahead to what's coming for the U.S. military with retired General Mike Davidson, retired Captain Rosemary Mariner and John Nagl. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

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