ABSTRACT-Precedent from the Roberts Court shows the Justices taking three distinct approaches to precedent they dislike. Each provides a template for the Court to criticize race-based affirmative action in higher education, as Fisher v. University of Texas at Austin is widely expected to do. Most narrowly, the Court might use Fisher to issue a warning, much like it did in 2009 when it sidestepped a constitutional challenge to the Voting Rights Act; under this approach, the opinion would spell out why the Justices think the diversity celebrated in Grutter v. Bollinger no longer provides sufficient justification for the use of race, but would nevertheless stop short of overturning Grutter. By contrast, the Court might use Fisher as a vehicle to overrule Grutter entirely; to do so, it might look to Citizens United v. FEC for instructions on how to disavow a governmental interest only recently upheld as sufficient justification for a challenged regulation. Finally, the Court might pursue a stance Justice Kennedy has charted in several opinions; under this approach, it would focus on means rather than ends in order to excise what the Court finds most objectionable about the admissions practices at the University of Texas.
Last fall, the Supreme Court heard argument in Fisher v. University of Texas at Austin,1 a case that is widely expected to end race-based affirmative action in higher education. A decade ago, Grutter v. Bollinger2 upheld that practice, holding that public universities and colleges could lawfully include race as one factor in admissions decisions to foster racial diversity on campus. At the time, the Court speculated that such diversity would be achieved in twenty-five years and that race-based affirmative action thus would no longer be necessary in 2028.3 The Roberts Court now appears ready to ditch the practice much sooner.
This prospect should come as no surprise. Vulnerable from the start, Grutter was the product of a deeply divided Court and has lacked majority support among the Justices ever since its author, Justice O'Connor, retired in 2005. Since then, the Roberts Court has voiced its hostility to race-based criteria in a host of contexts and has also repeatedly shown its willingness to displace precedent it dislikes.4 Add to this the fact that Fisher contains none of the characteristics that typically justify Supreme Court review, and it looks like a safe bet that the Roberts Court did not take the case to affirm the wisdom of diversity-seeking affirmative action. It is far more likely that the Court will use Fisher as a vehicle to condemn Grutter and the type of decisionmaking it fosters.
What remains to be seen is precisely how the Roberts Court will express that condemnation. Many anticipate the Court to scrap Grutter entirely.5 Still, overruling the case is not the only means by which the Court might voice its objections to the Grutter framework. In fact, recent decisions show the Roberts Court responding in three very different ways when confronted with precedent it disfavors. Each presents a plausible template for resolving Fisher.
I. GIVING NOTICE: THE NAMUDNO TEMPLATE
Most narrowly, the Court might decide to use Fisher to issue a warning, much like it did in 2009 when it sidestepped a constitutional challenge to the Voting Rights Act (VRA). Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO)6 addressed a provision of the VRA that requires jurisdictions with a history of voting discrimination to obtain federal approval prior to changing any aspect of their voting laws.7 The Supreme Court had repeatedly upheld the provision,8 but by 2009 questions had arisen as to whether it was still justified. Writing for the Court, Chief Justice Roberts seemed quite skeptical that it was justified and listed reason after reason why the statutory provision appeared constitutionally infirm.9
His opinion nevertheless opted not to throw out the statute. …