Affirmative action

This will probably not end well:

WASHINGTON — Nine years after the Supreme Court said colleges and universities can use race in their quest for diverse student bodies, the justices have put this divisive social issue back on their agenda in the middle of a presidential election campaign.

Nine years is a blink of the eye on a court where justices can look back two centuries for legal precedents. But with an ascendant conservative majority, the high court in arguments Wednesday will weigh whether to limit or even rule out taking race into account in college admissions.

The justices will be looking at the University of Texas program that is used to help fill the last quarter or so of its incoming freshman classes. Race is one of many factors considered by admissions officers. The rest of the roughly 7,100 freshman spots automatically go to Texans who graduated in the top 8 percent of their high school classes.

A white Texan, Abigail Fisher, sued the university after she was denied a spot in 2008.

The simplest explanation for why affirmative action is back on the court’s calendar so soon after its 2003 decision in Grutter v. Bollinger is that the author of that opinion, Sandra Day O’Connor, has retired. Her successor, Justice Samuel Alito, has been highly skeptical of any use of racial preference.

Justice Anthony Kennedy, a dissenter in the 2003 decision, probably holds the deciding vote, and he, too, has never voted in favor of racial preference.

In an interview with Dahlia Lithwick, who’s covered SCOTUS for many years:

If you had to write a help-wanted ad for the position of Supreme Court justice, what would you include in the job description?

It would start with: Those who went to Harvard or Yale Law School need not apply. Every sitting justice went to Harvard or Yale. That tells you something about the very narrow bandwidth from which the members of the court are coming. And it’s not just the law school they went to – more and more nominees worked for the executive branch. Everybody who is on the court right now, with the exception of Justice Elena Kagan, came off the bench. Justice Ruth Bader Ginsburg is the only one on the court who was a civil rights attorney. Back in the day, we used to have people like Sandra Day O’Connor and Earl Warren, who served in elected office. Now none of those people could get confirmed. There is a narrowing in the backgrounds of nominees when what we need is diversity – diversity of voice, of belief, of career and of experience.

Beyond that, I think empathy got a bad rap. During Sonia Sotomayor’s hearings, the suggestion that Barack Obama should select someone who exhibits empathy was shot down as an unspeakable idea. Empathy shouldn’t be confused with sympathy and it shouldn’t be confused with bias. It means the ability to walk a mile in somebody else’s shoes. That may be the single most important quality going into a court where once you are seated you never walk anywhere in anyone else’s shoes. You are exposed to an extremely narrow range of people, you just think and write.