Rumors swirl around holdup in Supreme Court affirmative action decision

Eight months after attorneys for Abigail Fisher argued in front of the Supreme Court that the University of Texas' affirmative action admissions policy discriminates against white students, the justices still have not handed down their decision in the potentially paradigm-shifting case.

The unusual delay has many court-watchers stumped, though as with everything Supreme Court-related, all explanations for the wait are, at best, educated guesswork.

Lyle Denniston, who has covered the Supreme Court for more than 50 years and now works for the legal website SCOTUSblog, said he couldn't remember another case that had been argued in the fall yet still undecided by mid-June.

"I have absolutely no idea what is holding it up," Denniston said.

One reason why the delay is so surprising: During oral arguments in October, it seemed fairly clear that the four conservative justices would band together with swing vote Justice Anthony Kennedy in striking down the use of race as a factor in undergraduate admissions. Kennedy has voted against affirmative action policies in the past and showed no willingness during questioning to reconsider his past position.

Additionally, the four liberal-leaning justices are short Elena Kagan, who had to recuse herself in this case due to her work on it while a part of the Obama administration. That seemed to clear the way for an easy 5-3 decision in favor of Fisher.

"It's really surprising that it's taken this long for the court to issue an opinion," said Adam Winkler, a constitutional law professor at UCLA School of Law. "It's almost unheard of for the court to take the entire term to decide what really is a straightforward case."

Winkler said he believes the court will rule broadly against the University of Texas in a way that will outlaw affirmative action programs nationwide. He thinks that instead of ruling narrowly against this particular school, the court will overturn its own 2003 Grutter v. Bollinger decision that said affirmative action is allowable as long as it's not a quota system as a way to ensure schools have a diverse student body. In that decision, the court ruled that eventually, in 25 years, the use of race would again becoming legally suspect, but that until then it's needed to correct societal discrimination.

Winkler guesses the decision is taking so long because the liberal justices are writing lengthy dissents to the conservative judges' sweeping decision.

"The dissenting justices are very upset about something," Winkler predicted. "A narrow ruling only striking down Texas' policy without significantly reshaping the law of affirmative action should be an easy opinion to write and shouldn't inspire unusually long dissents."

Long-time court reporter Linda Greenhouse, however, wrote in The New York Times that it's possible Kennedy's decision is considered "frustratingly narrow" by his conservative colleagues, since the court has already agreed to hear another affirmative action case in the fall. That suggests they may want another crack at the issue next year.

Another theory floating around legal circles is that the court may be waiting to release the Fisher case at the same time as it hands down Shelby County v. Holder, another landmark case this term (heard in February) that has the potential to significantly diminish the reach of the Voting Rights Act. Alabama sued the federal government, arguing that Southern and other states covered under the act are unfairly monitored by the federal government for discrimination in voting.

One theory is that the court will release the decisions together to make a broader statement about race in society today and how far government institutions may consider race as a way to correct past institutionalized discrimination. The justices could strike down the use of race in admissions as unconstitutional while upholding the Voting Rights Act, as a way to split the issue down the middle and avoid charges of overreach.

But other court watchers said it's routine for the court to save its most controversial opinions for the last minute, and that it's impossible to know why the supremes are dawdling.

"This means nothing," Geoffrey Stone, the former dean of the University of Chicago Law School, said. "The court generally holds its most important decision for the end of the term. We can't read anything at all into the fact that it hasn't handed down Fisher yet."

"I think the more likely explanation is simply that dealing with tough issues requires a lot of thought and care," said Gail Heriot, a law professor at the University of San Diego.