WASHINGTON — The Supreme Court on Wednesday heard arguments in a major affirmative action case, with the justices debating the nature and value of diversity in higher education and the role of the courts in policing how much weight admissions officers may assign to race.
The questioning was by turns caustic, exasperated and despairing, and it brought into sharp relief how much has changed since the court last addressed these issues in 2003. The member of the court who now probably holds the decisive vote, Justice Anthony Kennedy, tipped his hand only a little, asking a few questions that indicated discomfort with at least some race-conscious admissions programs. He told a lawyer for the University of Texas at Austin, which was challenged over its policies, that he was uncomfortable with its efforts to attract minority students from privileged backgrounds.
“What you’re saying," Kennedy said, “is that what counts is race above all."
He asked a lawyer for Abigail Fisher, a white woman who was denied admission to the university, whether the modest racial preferences used by the university crossed a constitutional line. Then he proposed an answer to his own question.
“Are you saying that you shouldn’t impose this hurt or this injury, generally, for so little benefit?" he asked.
Justice Sonia Sotomayor summarized the central question in the case. “At what point — when — do we stop deferring to the university’s judgment that race is still necessary?" she asked. “That’s the bottom line of this case."
The last time the Supreme Court heard a major affirmative action case about admission to public universities, in April 2003, Justice Sandra Day O’Connor was at the court’s ideological center. And it was she who wrote the majority opinion in the court’s 5-4 ruling allowing race to be considered in admission decisions, as one factor among many. She attended Wednesday’s argument.
It seemed tolerably clear the four members of the court’s conservative wing were ready to act to revise the Grutter decision. Chief Justice John Roberts asked whether someone who was “one-eighth Hispanic" counted as Hispanic, suggesting that the exercise of sorting people by race and ethnic background was unworkable if not absurd.
He appeared to grow frustrated when he repeatedly asked the university’s lawyer, Gregory Garre, how the court would know when a “critical mass" of minority students had been achieved. Garre gave only a general answer.
The court’s more liberal members said there was no reason to abandon the earlier framework.