KEITH OLBERMANN: What is settled law in this country, and what might be reversed at any time, even 50 years after its introduction by President Kennedy and after countless affirmations in the courts?
In our number-one story — the Supreme Court announcing it will revisit the role affirmative action plays in higher education. This time around, a much more conservative court threatening the survival of affirmative action.
The high court said it will hear Fisher v. Texas, to determine if one Abigail Fisher was denied admission to the University of Texas because she is white. In 1996, a federal appeals court banned the use of affirmative action in Texas public universities.
In 2003, that was reversed, Justice Sandra O'Connor writing the five-to-four decision Grutter v. Bollinger, ruling the University of Michigan Law School could consider race when evaluating applicants: "The Equal Protection Clause does not prohibit the University of Michigan Law School's narrowly-tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."
But Justice O'Conner has been succeeded by the doctrinaire Justice Samuel Alito. In 2007 he wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
Right now, students in the top 10 percent of Texas high schools are automatically admitted into that state's public university system. Ms. Fisher missed the cutoff. She was put into a group where race is considered among other factors, like community service and work experience.
Let's try to hash this out with constitutional law expert Jonathan Turley, the George Washington University law professor and, we're proud to say, a "Countdown" contributor. Good to talk to you, Jon.
JONATHAN TURLEY: Hi, Keith.
OLBERMANN: The last time the Supreme Court ruled on affirmative action was nine years ago. Any indication why it's taking this up now?
TURLEY: Well, probably a simple head count. The court is much more conservative. Also, it's an opportunistic moment because Kagan has recused herself, and she was a very strong vote likely in favor of Texas. So this is now an eight-person court, and the swing justice, Justice Kennedy, voted previously against the position of Sandra Day O'Connor in the case that you just mentioned, Grutter.
But also, the odd thing is really timing. You know, one of the most controversial parts of the O'Connor decision in Grutter is that she sort of arbitrarily said we're going to allow this to happen for 25 more years, and a lot of people viewed that as sort of — were taken aback a bit. Why 25 years? Even Justice Ginsburg and Breyer would not sign on to that statement, but that's the statement of the majority opinion. So even under that analysis, we would have only — you know, the difference of maybe 15 more years for Grutter to be good law.
So there's been a lot of controversy about how O'Connor wrote that opinion.
But, you're right, the question here is often one of what's called "stare decisis," or the respect of previous decisions. The court has always maintained that it's not just a head count, it tries to have some continuity, consistency. This would seem to shatter decisis.
The lower courts ruled that this plan of Texas's fell squarely within the guidelines of Grutter, so in order to come out the other way, you really have to shatter Grutter and say, "We now have five justices going the other way."
OLBERMANN: So, what happened to the court taking cases like this and saying, "Look, we decided it this way, Congress. If you want to change it, you change it." What happened to that line, and did we ever have a definition of where that line was?
TURLEY: Well, you know, the problem with Grutter is it was really fractured. I mentioned that the two justices would not sign on to O'Connor's 25-year statement. You had even a fracture among the dissents. Although, they generally agreed that there should be no race consideration.
There's also an added issue here, Keith, where it has an out for justices. There's a question of standing and whether Miss Fisher still has a legitimate reason to ask for relief. The irony is that she's just asking for her $100 back, which is what you paid for the allocation and the housing deposit, but clearly four justices wanted to see this case on the merits. There's no question that they have the presumed five votes that could send Grutter into the ashbin of history, and with it could go affirmative action, at least in consideration of race.
OLBERMANN: All right, how much would it go? I mean, is this overturning everything we know as affirmative action or is it limited to educational applications or what?
TURLEY: Well, it depends how they write it. As you just quoted, Sandra Day O'Connor's replacement, Alito, takes a very clear position on this, that you can't fight race discrimination by considering race, and they could very well adopt that. That would have sweeping impact across the board.
You do have five strong justices here when it comes to not liking affirmative action, considering race issues. You know, Kennedy has been more nuanced. He hasn't been quite as strong, but Chief Justice Roberts has been very outspoken against the use of race. So my guess is that when the four justices that accepted this case, they have Grutter in the cross hairs. They want to see it overturned.
OLBERMANN: Jonathan Turley of George Washington and, we're proud to say, "Countdown." Always a pleasure. Thank you for you insight, sir.
TURLEY: Thank you, Keith.
