By Sam Baker - 06/23/13 10:00 AM EDT
Supreme Court observers are wondering why the court hasn’t ruled yet in a major affirmative action case.
The court is closing in on the end of its term, and legal experts have said for weeks that they thought a ruling in the affirmative action case was imminent.
“The number of days they have left to disappoint us are growing pretty slim,” said David Gans, civil rights director at the Constitutional Accountability Center.
Legal experts expected the affirmative action ruling to come sooner than it has largely because the timing of decisions tends to fall roughly in line with when cases were argued — the earlier the oral arguments, the sooner the court will rule. And the affirmative action case was argued on the first day of the term, back in October.
The court typically holds its biggest decisions until the very end of its term — generally the end of June. There are now 11 cases still awaiting rulings, according to SCOTUSBlog. Fisher is one of only two pending cases that were argued in 2012.
With each passing day the decision isn’t announced, speculation about the court’s internal deliberations grows.
Gans said the long wait for the Fisher ruling could suggest that the justices disagree over how to resolve the case.
"One possibility is there's been fighting over the rationale,” Gans said.
Chief Justice John Roberts and other conservative members of the court seemed to indicate during oral arguments that they could be open to a broad decision with sweeping implications for many affirmative action programs.
But that might be a hard sell for Justice Anthony Kennedy, the court’s swing vote, Gans said. Kennedy has sided against affirmative action in the past but has not joined Roberts’s strong rhetoric that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Gans said the ruling might have even changed during the drafting process. The justices cast initial votes the same week they hear each case, but they can change their minds or try to alter the scope of the ruling while the opinions are being written and circulated.
A more distant possibility, Gans said, is that the court would order a new hearing in the case. It’s very rare for the court to order a rehearing, but it’s not unprecedented — that’s what happened with the Citizens United case on campaign finance laws. The justices ordered new arguments in that case so they could raise new questions and rule more broadly against restrictions on political spending.
The same thing could happen if the conservative justices decide the Fisher case, as it was argued in October, can’t support a decision as sweeping as they’d like to make.
"You could see something parallel happen here,” Gans said. "It sort of makes sense. That would explain why we haven't heard anything.”
The Fisher case deals specifically with affirmative action at the University of Texas. The school automatically admits Texas residents who graduated in the top 10 percent of their high school class. It then uses a holistic set of other factors — including race — to fill its remaining slots.
Because the top-10-percent policy does not account for race, this particular case might not present a strong vehicle for the court to rule broadly against affirmative action programs. If the court’s conservatives aren’t satisfied with such a narrow ruling, they could request new arguments to put broader issues on the table.
"I think that seems like a possibility that could be in play that I don’t think many people have seen,” Gans said.
For all the speculation about possible turmoil, it’s also entirely possible that the court will rule as soon as Monday in the affirmative action case.
It’s not as if Fisher has fallen behind higher-profile cases. The other big decisions of the current term — challenges to the Voting Rights Act and restrictions on same-sex marriage — are also still pending, and legal experts haven’t expected the court to issue those rulings until next week.
The court only has two more days scheduled to release its remaining 11 decisions — Monday and Thursday. It could always add more decision days in the middle of the week, or stretch into next week. (The court’s term doesn’t have a set end date; it simply ends whenever the justices are finished.)
Based on the timing of oral arguments, the Fisher ruling still seems likely to come soon — just as it did three weeks ago.