On October 10, the U.S. Supreme Court heard oral arguments in Fisher v. University of Texas, the latest in a series of cases in which the court has struggled to decide whether universities that are attempting to increase the numbers of African-Americans and Hispanics in their student bodies have gone too far and thus violated the equal protection clause of the Constitution. Judging from the transcript of the argument, confirmed by most press reports, it is hard to see how the university will prevail. Although there are aspects of the case that might have caused the court not to reach the merits or to decline to hear it all, it does not appear as if the majority is troubled by them. Thus, the real question does not seem to be which side will prevail, but what the court will do to the future of affirmative action generally.
Fisher attracted more than 90 amicus briefs that provide the court with a vast array of policy and legal arguments about issues ranging from the importance of assuring broad diversity in both undergraduate and graduate education, to the history of discrimination against blacks at the university, to the impact of affirmative action on Asian-Americans who themselves were victims of discrimination, but not slavery, to arguments about the harms that sometimes befall those who are the supposed beneficiaries of these programs. Studies and counterstudies were presented to the Supreme Court that were never before the trial court, with no obvious way for the justices to sort through them, let alone any clear rules on how much they should be taken in account, or how to resolve the seemingly contradictory descriptions of what they conclude. Whatever the problems these policy briefs raise, the court has become so accustomed to receiving and utilizing them, that is seems unlikely that it will not rely on some of them, at least for re-enforcement of conclusions reached on other bases.
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