Conservative Justices Prepare to 'Gut' Affirmative Action

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http://www.theatlantic.com/national/archive/2012/10/conservative-justices-prepare-to-gut-affirmative-action/263494/

Oct 11 2012, 12:28 PM ET
Conservative Justices Prepare to 'Gut' Affirmative Action
With Sandra Day O'Connor off the court, a system upheld just nine years ago will survive, if at all, as a shell of its former self.
By Garrett Epps

"There are facts and there are facts, aren't there?" Justice Antonin Scalia asked in Wednesday's oral argument over affirmative action.

The question specifically referred to parts of lower-court opinions in Fisher v. University of Texas in which judges described the University's affirmative action program. But they could serve as an epigraph for the entire argument, which took place at three levels.

There are the facts about Texas's affirmative action program, a limited use of "race as a plus" that has modestly increased its enrollment of African Americans and Latinos since it was instituted in 2005. Those facts show an effort by the university to conform its program to Grutter v. Bollinger, the 2003 case that approved some use of race in higher education admissions.

Then there are "facts" -- unshakable beliefs about the evils of affirmative action held by at least three of the Justices. Justice Clarence Thomas (who as usual did not speak at argument) has written that universities court minority admits simply as a matter of "racial aesthetics."