Washington — Of all the questions that Supreme Court Justices asked of the attorneys who delivered their oral arguments Wednesday in the Fisher v. University of Texas at Austin case, one of the most pointed was directed at Fisher’s attorney.
“Are you asking us to overrule Grutter?” Associate Justice Stephen G. Breyer asked Fisher’s attorney, Bert Rein, referring to Grutter v. Bollinger, the 2003 Supreme Court case that permits the narrow use of race in college admissions to achieve diversity.
“Grutter said it would be good law for at least 25 years,” Breyer told Rein. “And I know that time flies, but I think only nine of those years have passed.”
Despite the laughter that followed, the question of whether to overturn Grutter is one of the most crucial that the Court will consider as it deliberates in the case that could restrict or abolish the use of race in college admissions and, proponents of race-conscious affirmative action say, damage hard fought-for efforts to achieve diversity on campus.
Conversely, the Justices could render a decision that could leave in tact the status quo for the balance of the 25 years that then-Justice Sandra Day O’Connor said in her 2003 opinion in Grutter that race-conscious affirmative action may still be necessary to achieve diversity on campus.
“Why overrule a case into which so much thought and effort went and so many people across the country have depended on?” Breyer asked, amplifying a question raised in court documents filed in support of UT Austin.
Rein replied that he was not arguing that Grutter should be overruled, but that the problem has been “varying understandings” of how universities can achieve diversity through the Grutter decision.
