The high court ruled on race-based affirmative action in two landmark cases in 2003. Then, like now, the court was divided into a conservative bloc and a liberal bloc, with two members, Justices Sandra Day O'Connor and Anthony Kennedy often forming the swing votes.
But now the three-member conservative bloc has grown into a four-member bloc, matching the four liberals, with Kennedy acting as the sole swing vote on many important cases.
One of those 2003 decisions, in a 5-4 opinion written by O'Connor, gave the gasping concept of race-based preferences new life. Now O'Connor is long retired, and Kennedy was a dissenter in that 2003 case.
The new reality in 2011 is that Kennedy would most likely join the four conservatives, Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, to declare race-based affirmative action unconstitutional -- barring some stunning surprise.
The liberals, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, likely would have to settle for dissent.
In fact, the outlook for affirmative action, what conservatives call "racial preferences," in today's Supreme Court is so dismal, "Civil rights groups get nervous when such cases arise before the reconstituted Roberts Court," The Washington Post reported July 31.
United Press International first noted the probable fate of affirmative action in an analysis in August last year, following a June 2009 decision when the high court voted 5-4 along its ideological divide that federal civil rights law can be used to ban discrimination against whites.
That case was brought by 20 white firefighters in New Haven, Conn., including one white Hispanic, whose passing scores on a promotion test were thrown out because no blacks had scores high enough to be promoted.
The exam was designed to select 15 candidates for captain and lieutenant. When no blacks and only one Hispanic scored a passing grade, the city decided not to use the results for promotions.
The white firefighters filed suit, citing the 1964 Civil Rights Act, which bans discrimination on the basis of race or sex. A federal judge and a federal appeals court ruled for the city. The Supreme Court ruled for the white firefighters.
Writing for the narrow majority, Kennedy said, "The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the city's refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the city had established for the promotional process."
With no strong evidence "of a disparate-impact violation (a violation of the rights of minorities) ... the city was not entitled to disregard the tests based solely on the racial disparity in the results," Kennedy added.
The two new cases pushing affirmative action back to the high court for constitutional review involve the University of Texas at Austin and the state of Michigan, where voters passed a constitutional amendment in 2006 banning the state's public colleges from giving "preferential treatment" based on "race, sex, color, ethnicity or national origin."
The Texas case is likely to reach the Supreme Court first.
More than three-fourths of freshmen enroll at the Austin school under a state law that gives automatic admission to students in the top 10 percent of their high school classes. For the remainder, the school considers a number of factors, including race.
Two white students denied UT admission under the policy challenged it in federal court.
A three-judge appellate panel upheld the admissions policy, and the full 5th U.S. Court of Appeals, one of the most conservative in the country, refused to rehear the case by a vote of 9-7.
The Texas Parte law blog reported one of the circuit dissenters, Chief Judge Edith H. Jones, said the panel's decision "gives a green light to all public higher education institutions in this circuit, and perhaps beyond, to administer racially conscious admissions programs without following the narrow tailoring that (Supreme Court precedent) requires. Texas today is increasingly diverse in ways that transcend the crude White/Black/Hispanic calculus that is the measure of the university's race conscious admissions program."
In the separate Michigan case, a three-judge appellate panel ruled 2-1 that the state amendment violates the equal protection clause of the 14th Amendment.
Late last month, Michigan Attorney General Bill Schuette, a Republican, asked the full 6th U.S. Court of Appeals to rehear the case. If the full circuit won't rehear the case en banc, Schuette said, he'll take the case to the Supreme Court, the Post reported.
Besides Michigan, voters in California, Nebraska and Washington state have enacted amendments banning the use of race for advantage in the public sector, including college admissions.
Getting back to those two landmark two decisions in 2003, they actually went two ways -- one restricting the way the University of Michigan used affirmative action to choose undergraduate applicants, and one approving in a narrow way the method the university's law school uses affirmative action to choose applicants.
In Gratz vs. Bollinger, the high court ruled 6-3 that the university's admissions guidelines were unconstitutional. The guidelines used a number of factors to evaluate an undergraduate applicant, assigning a numerical value to each factor. Those scoring above 100 were considered eligible to fill the limited number of slots. However, minorities automatically received a 20-point bonus.
Two white students who normally would have been admitted, but weren't, challenged the policy in court.
The prevailing opinion written by Chief Justice William Rehnquist said, "Because the university's use of race in its current freshman admissions policy is not narrowly tailored to achieve (the school's) asserted interest in diversity, the policy violates the equal protection clause" of the 14th Amendment. The Supreme Court "has today rejected (the two white students') argument that diversity cannot constitute a compelling state interest. However, the court finds that the university's current policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single 'underrepresented minority' applicant solely because of race, is not narrowly tailored to achieve educational diversity."
The other University of Michigan case, Grutter vs. Bollinger, was handed down the same day and saw O'Connor joining four liberals to form the five-member majority for a decidedly different result.
The university's law school chose applicants based on a number of factors, including race, but gave no numerical weight to race. Instead, the law school tried to achieve a "critical mass" of students, black and Native American, who might otherwise not be included.
Again, the policy was challenged by a white student who was qualified to be admitted to the law school, but wasn't.
O'Connor's narrow majority opinion said, "The law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the equal protection clause."
She said the law school's policy survived even strict scrutiny, the toughest of three levels of scrutiny used by the courts (the lower levels are "reasonable review" and "intermediate review").
"All government racial classifications must be analyzed by a reviewing court under strict scrutiny," she wrote, citing Supreme Court precedent. "But not all such uses are invalidated by strict scrutiny. Race-based action necessary to further a compelling governmental interest does not violate the equal protection clause so long as it is narrowly tailored to further that interest. ... Context matters when reviewing such action. ... Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the government's reasons for using race in a particular context."
But she warned that racial preferences could not last forever.
She said, "It has been 25 years since Justice (Lewis) Powell first approved the use of race to further an interest in student body diversity in the context of public higher education" in 1978's Regents of the University of California vs. Bakke. "Since that time, the number of minority applicants with high grades and test scores has indeed increased. ... We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
Kennedy joined the three conservatives, Rehnquist, Scalia and Thomas, in dissent, but also wrote separately.
"In the context of university admissions the objective of racial diversity can be accepted based on empirical data known to us, but deference is not to be given with respect to the methods by which it is pursued," he said. "Preferment by race, when resorted to by the state, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality."