This week showed yet again why the Supreme Court is such an important issue in the presidential election. The Court heard oral arguments in Fisher v. University of Texas, which challenges the constitutionality of UT’s limited affirmative action plan for undergraduates. A key reason this case is being heard, with opportunities for millions of minority students on the line, is because George W. Bush won the 2004 election.
UT’s affirmative action program is modeled on one upheld by the Supreme Court in 2003, in a case called Grutter v. Bollinger. The Court concluded then that public universities have a "compelling interest in obtaining the educational benefits that flow from a diverse student body" and that the law school’s affirmative action plan it approved was narrowly tailored to serve that compelling interest. Grutter was decided 5-4, with Justice O’Connor writing the majority opinion. Progressives breathed a sigh of relief that Justices like Scalia and Thomas didn’t carry the day with their opposition to efforts to achieve diversity at public universities.
A year after the Supreme Court had apparently settled the issue, George W. Bush won the 2004 election. He had promised to fill any Supreme Court vacancies with Justices like Scalia and Thomas, and that’s exactly what he did in 2005-2006. Justice O’Connor was replaced by Samuel Alito, driving the Court far rightward. Alito has shown the same deep suspicion of diversity efforts as Scalia and Thomas, and nothing he said at oral arguments yesterday suggested he would vote to uphold UT’s affirmative action program.
While the far-right Justices may overrule the 2003 precedent overtly or simply "gut it" (as Justice Sotomayor described the opponents’ goal), few expect the Court to uphold UT’s affirmative action plan.
And all because of who won the presidential election eight years ago.
This year, it is Mitt Romney who is vowing to fill Supreme Court vacancies with Justices like Scalia and Thomas. Don’t think for a minute that he doesn’t mean it – or that a Romney Court wouldn’t affect our lives for decades to come.