As the national spotlight turns to the U.S. Supreme Court this week with two historic arguments on same-sex marriage, the court on Monday made headlines on another high-profile issue: affirmative action.
Just 10 years ago a narrow court majority upheld affirmative action programs in higher education in an opinion written by Justice Sandra Day O'Connor. But ever since O'Connor retired and was replaced by the more conservative Justice Samuel Alito, the court has been on a steady march to get rid of all race-conscious programs.
In October, the justices heard arguments in a case from the University of Texas that has the potential to reverse O'Connor's affirmative action ruling.
After oral arguments, the only real question seemed to be whether the court would rule broadly, striking down all affirmative action programs, or narrowly, dealing just with the University of Texas program — a program with unique features. Then too, there was the possibility that the court would deadlock 4 to 4 because Justice Elena Kagan is recused from the case.
But on Monday, with the Texas case still undecided, the court surprised observers by accepting yet another affirmative action case for next term. This one, from Michigan, tests whether voters, by referendum, can bar affirmative action programs in higher education.
It is unclear just what it means that the court seemed to jump the gun in the case. After all, it will not be heard until next term. But if the justices are readying a broad decision in the Texas case, invalidating all affirmative action programs, it would seem to be unnecessary to hear the Michigan case.
Michigan's controversy began in 2006 when voters, by a vote of 58 percent to 42 percent, passed a state constitutional amendment prohibiting state universities from implementing race-conscious admissions policies. Civil rights groups and individuals challenged the law and won in the lower courts.
A federal appeals court cited Supreme Court rulings from the late 1960s that faulted referendums overturning local civil rights laws because the ballot initiatives appeared to target minorities. The lower court said that Michigan's anti-affirmative action referendum was much like those cases and could not stand.
But a majority of the U.S. Supreme Court now seems to be of a very different view, in numerous cases expressing overt hostility to race-conscious programs generally. That would seem to make it likely that the court will revive the Michigan referendum.
Such a ruling would be ironic indeed, since it was the affirmative action program at the University of Michigan Law School that the Supreme Court upheld in 2003.
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AUDIE CORNISH, HOST:
From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.
Under a cold gray sky outside the U.S. Supreme Court, people are waiting. A line of those hoping for a seat at tomorrow's same-sex marriage arguments winds down the court's steps and along the sidewalk. In a few minutes, we'll hear from some of those people who are enduring the chill and rare March snow to get into the court tomorrow.
Meanwhile, today, inside the Supreme Court, the justices threw a curveball on another high-profile issue, affirmative action. For more on that, NPR legal affairs correspondent Nina Totenberg joins us now. And. Nina, what's the curveball?
NINA TOTENBERG, BYLINE: Well, as you may recall, Audie, the court last fall heard arguments in a case testing the constitutionality of affirmative action in admissions at the University of Texas. Now, just 10 years ago, the court upheld affirmative action programs in higher education in an opinion written by Justice Sandra Day O'Connor.
But ever since O'Connor retired and was replaced by the more conservative Justice Samuel Alito, the court has been on an apparent march to get rid of all race-conscious programs. And after oral arguments in the Texas case, the only real question seemed to be whether the court would rule broadly or narrowly to get rid of the Texas program.
Well, today, before resolving the Texas case, the court accepted for review another affirmative action case for next term. This one testing whether voters, by referendum, can bar affirmative action programs in higher education.
CORNISH: So why is this considered a curveball?
TOTENBERG: Because it really does seem to jump the gun even before there's a ruling in the pending affirmative action case. And that's not something the court usually does.
CORNISH: So what are people making of this?
TOTENBERG: Well, I really don't think it's entirely clear. You could infer from this that if the court were, for example, going to bar affirmative action programs, why would they need to be jumping the gun with this case? So perhaps the court is going to rule narrowly in the Texas case and therefore has taken this case. I do think it's fair to say that it's further evidence of the conservative justices' overt hostility to race-conscious programs.
CORNISH: So, tell us a little bit more about this new case that the court's accepting.
TOTENBERG: Well, the lower court ruled that Michigan voters could not simply ban affirmative action programs in higher education. The appeals court cited Supreme Court rulings from the late 1960s that faulted referendums overturning local civil rights laws and that thus appeared to target minorities. The appeals court said that Michigan's anti-affirmative action referendum was much like this and could not stand.
But, in fact, a majority of the U.S. Supreme Court right now seems not to like these kinds of programs. So I think the appeals court decision is likely to fall and the ban on affirmative action in Michigan is likely to go into effect, which of course is a little bit ironic since it was the University of Michigan Law School program that the Supreme Court upheld just 10 years ago.
CORNISH: All right, Nina, let me just turn briefly to tomorrow's case. We're about to hear from the folks outside the courthouse steps. But tell us, what can they expect once they come inside?
TOTENBERG: Well, there are 400 seats in the courtroom, and that includes the section reserved for the Supreme Court bar, for counsel, the press, special groups or guests. The court usually tries to save 60 to 70 seats for members of the public to sit for the full argument, which will be an hour tomorrow, two hours, almost two hours the next day. And there are an additional 30 or so seats for people to rotate in and out for three to five minutes.
My understanding is that if you don't get in on the first day, then you can stay in line and maybe get in the second day and, of course, you can listen to the arguments. They'll be posted online the same day.
CORNISH: That's NPR's legal affairs correspondent Nina Totenberg. Nina, thank you.
TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.