How Affirmative Action Shaped the Current Supreme Court

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Tomorrow's case may put an end to the policy at U.S. universities. But its personal impact on the careers of several of the justices could hardly be more pronounced.

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Protesters turned up in support of affirmative action when the Supreme Court heard Grutter v. Bollinger in 2003. (Brendan McDermid/Reuters)

We'll have some good stuff up on the site over the next few days focusing on the affirmative action case being argued tomorrow before the United States Supreme Court. And there is a ton of 1) smart work, 2) already posted, 3) online, 4) elsewhere for those of you who are particularly interested in the case, the cause, and the political and legal dynamics going into the argument. Garrett Epps, our resident professor, will offer his assessment of the oral argument later this week, and I'll eventually chime in when the ruling comes down, likely sometime in January.

But I wanted to post a short piece today to say that I find it altogether fitting that the case, Fisher v. University of Texas, comes out of the Lone Star State. It is fitting because this really does figure to be the last stand -- the Alamo, you might say -- for affirmative action in the academic context. No matter how hard good folks have worked to argue otherwise, no matter how many amicus briefs have been filed, I do not see five votes to sustain the university's policy here. Instead, I see five strident votes to do away with that policy -- and others around the country.

Justice Sandra Day O'Connor, to paraphrase the basketball coach Rick Pitino, is not walking through the door to save affirmative action the way she did in 2003 in Grutter v. Bollinger, a case out of the University of Michigan's law school. The looming demise of the University of Texas' policy, another hammer blow to the concept of affirmative action more generally, was virtually guaranteed the day in 2006 that the Senate confirmed Samuel Alito to replace Justice O'Connor on the court. He's surely going to vote to strike down the admissions policy here.

Which makes him one of three justices most worthy of following tomorrow, if you happen to be inside the courtroom when the justices hear the case. It was, after all, Samuel Alito who as a Princeton undergraduate joined a conservative group which protested (and with a great deal of ugliness) the school's nascent affirmative action policies -- the very policies that enabled another justice, Sonia Sotomayor, to begin her remarkable journey to the High Court. That these two people would find themselves on opposite sides of the fight in Fisher is remarkable enough. That they both would be present at the demise of affirmative action is breathtaking.

Justices Alito and Sotomayor represent the yin and yang of the issue. Her life story is the story of what affirmative action has achieved, and can achieve, for individuals and the American scene. His life story is the story of the reaction to affirmative action, the righteous indignation that many people feel about its impact. And Justice Alito's view ultimately will prevail, not because he and his Court conservatives are necessarily right, or because affirmative action is necessarily wrong, but because they are five and their opponents are four. Amid the millions of words written and spoken on the topic, it's no more complicated than that.

Which brings me, finally, to Justice Clarence Thomas. Here's a man who benefited so greatly from affirmative action -- right up until he made it onto the Court -- that he somehow came to despise it. In that sense anyway, he represents the middle ground between Justices Alito and Sotomayor. Will Justice Thomas break his long-held silence for this case, of all cases? Will he finally ask a question during oral argument? Probably not. But what I wouldn't give to know his mind while the Fisher argument progresses. And what I wouldn't give for a few candid moments alone with all three of these jurists, each in their own way affirmative action babies.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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