Legal experts predicted Wednesday that the University of Michigan Law School’s affirmative action case will wind up before the U.S. Supreme Court, but how the court would rule is anyone’s guess. Liberal scholars predicted that the U.S. Supreme Court would uphold Tuesday’s 5-4 decision by a bitterly divided U.S. 6th Circuit Court of Appeals in Cincinnati that the U-M policy of considering race in admissions is constitutional.
Conservative scholars said the high court would strike down Tuesday’s decision.
But one expert, Lino Graglia, a prominent University of Texas Law School professor, said Americans should have no illusions about how the case ultimately will be decided.
“The law and the Constitution will have nothing do with the decision,” Graglia said. “It will all be about individual judgments.”
“We want to pretend that these things are decided on the basis of the law, but that’s perfect fiction,” he said, referring to judges’ political and philosophical biases that he said inevitably come into play in such high-stakes decisions.
He said allegations by one 6th Circuit judge that the chief judge of the court manipulated the outcome of the decision by waiting for two Republican appointees to retire from active duty before the full court took up the case shows what kinds of factors come into play on major issues.
The circuit panel ruled that U-M’s policy, which attempts to achieve a more diverse student body by considering the race of underrepresented minorities as a factor in admissions, is legal.
Nearly all of the legal experts interviewed Wednesday said they believe the case will wind up before the high court because of the importance of the case and because federal circuit courts have issued conflicted rulings on similar cases.
“Here we have a question of tremendous national significance and a conflict within the 6th Circuit itself,” said Georgetown University Law School professor Richard Lazarus. “One could expect the court to grant review.”
Lazarus said the court could decide as early as late October whether to hear the case and arguments could begin in February of next year.
Because appeals of differing decisions in cases in Georgia, Texas and Washington state have either been refused by the Supreme Court or dropped by the universities, the U-M law school case could be the one that breaks through, legal scholars said.
William Van Alstyne, a law professor at Duke University in Durham, N.C., said it’s not uncommon for the Supreme Court to pass up two or three cases on a particular topic until enough appellate courts have ruled on an issue, providing the high court with a range of judicial opinion to help it settle a controversy.
Van Alstyne said he thinks the Supreme Court will vote down the U-M policy by a 5-4 or 6-3 margin. Graglia said he thinks it could be a split decision, with Justice Sandra Day O’Connor casting the tie-breaking vote. But he said it’s hard to tell how she might vote based on her inconsistency in other cases.
Van Alstyne said Justices Anthony Kennedy, William Rehnquist, Clarence
Thomas and Antonin Scalia definitely would vote against U-M’s policy. So might O’Connor and John Stephens. The other justices, David Souter, Ruth Bader Ginsburg and Stephen Breyer probably would vote to uphold it, he said.
Susan Low Bloch, a law professor at Georgetown University, predicted that
O’Connor would uphold U-M’s policy.
“Michigan has carefully drafted this program and it will give her a chance to show that not all affirmative action programs are unconstitutional,” she said.
Robert Sedler, a Wayne State University law professor and expert on constitutional law, said there is a “reasonable possibility that the Supreme Court will uphold the 6th Circuit’s decision.”
“Contrary to media hype, the Supreme Court is not all ideologically driven and at least some justices are going to wait to make up their minds,” Sedler said.
Sedler said the high court may look again at the landmark 1978 Bakke case that said race could be used as one factor in admissions.
“The court is going to decide whether or not Bakke did hold that racial diversity is a compelling state interest in education. Secondly, the court may revisit that issue and may consider anew whether diversity is a compelling interest,” Sedler said.
U-M has received overwhelming support of its policies from corporations and most U.S. public universities.
“This really is not a black-white thing,” Sedler said. “The white establishment is strongly supportive of affirmative action, while there are individual whites who believe they have been discriminated against that don’t support it.”