New York Times

JUNE 12, 2013, 8:30 PM

What’s Your Hurry?

By LINDA GREENHOUSE

Every Supreme Court decision day that goes by without a ruling in the University of Texas affirmative action case provokes a generalized wringing of hands from those eager (or afraid) to learn the constitutional future of university admissions. “Where’s the case? What’s taking so long?”

To which I say: what’s the rush?

True, Fisher v. University of Texas was argued way back on Oct. 10, making it the oldest argued case on the court’s docket by more than six weeks. True, cases argued as recently as late April have already been decided, and it’s rare for June to arrive with an October case still hanging.

So I’m as puzzled as the next person as to precisely why the eight justices participating in this case (Justice Elena Kagan is recused, due to her earlier work on the case as solicitor general) haven’t been able to produce a decision. But that’s not really my point.

Rather, I’m questioning why the justices set out to decide this case in the first place. Why were they eager to get their hands around the issue so soon after suggesting, in the 2003 decision that upheld race-conscious admission in the University of Michigan Law School, that the country and the court should let the matter rest for 25 years? Why would they pick a case destined to be decided by an eight-member court, a case afflicted with a major procedural obstacle — the disappointed white applicant has already received her college degree elsewhere, a fact that would seem to make the case moot, as an earlier, more restrained Supreme Court found 40 years ago when confronted with a similar situation in an affirmative action case it had undertaken to decide.

This is a court in a hurry. The justices made that strikingly clear back in March, when they accepted a case on the validity of a voter referendum in Michigan that barred affirmative action in public university admissions. The United States Court of Appeals for the Sixth Circuit had declared the ban unconstitutional by a vote of 8 to 7. By the time the Supreme Court agreed on March 25 to hear the Michigan attorney general’s appeal, its calendar for the current term was full, so the case won’t be argued until after the new term begins in the fall.

The new case, Schuette v. Coalition to Defend Affirmative Action, differs from the Texas case in presenting an oblique rather than direct attack on affirmative action. The question is whether by adding the anti-affirmative action provision to the state constitution, the referendum altered the political process in a way that violates the federal constitutional guarantee of equal protection. This “political process” question, which the court has wrestled with for years, won’t be answered by what the court does in the Texas case. But it’s hard to imagine that the Texas decision won’t provide the lens through which to examine the issue in the Michigan case.

When the justices receive a new appeal that raises questions in the general vicinity of a case they have already agreed to decide, their routine response is to place the new case on hold to see how things shake out. It was therefore surprising that rather than deferring action on the Michigan case, the court grabbed it.

One reason might be that Justice Anthony M. Kennedy, who almost certainly received the opinion assignment in the Texas case, isn’t going far enough in that case to satisfy the other conservative justices. Under this theory, those justices responded to what they saw as a frustratingly narrow Kennedy opinion by jumping aboard the Michigan case as the next potential vehicle for shutting down affirmative action. They might have waited — traditionally, they would have waited — but, as I said, it’s a court in a hurry.

The question is why. The answer, I believe, can be found in the faint but resonant drumbeat of conservative concern about the stability of the Roberts Court’s narrow conservative majority. Most uninformed commentary on the future of the Supreme Court — which is to say, most commentary — has focused on Justice Ruth Bader Ginsburg, who just passed her 80th birthday. Is she about to retire, everyone asks, to permit President Obama to name her replacement? (The answer is no, she’s healthy and loves her job.)

This near-obsession with Justice Ginsburg’s age, health and plans has obscured the fact that the conservative justices are growing old at exactly the same rate. Justice Antonin Scalia turned 77 in March. Justice Kennedy turns 77 next month. Even Justice Clarence Thomas, a mere 43 when he was named to the court 22 years ago, becomes eligible on June 23 for his Medicare card.

Curt Levey, a prominent conservative commentator, took the occasion of Justice Scalia’s birthday to observe, in a Fox News op-ed, that it was entirely likely that at least one of the five conservative justices would leave the bench during the remainder of the Obama presidency. The result, he warned apocalyptically, was “a Warren Court redux,” one that would erase “all the strides conservatives have made since the Reagan era in containing judicial activism.”

Mr. Levey, a Harvard Law School graduate, heads an organization called the Committee for Justice, devoted to blocking Obama administration judicial nominations. His account of exactly what the court under Chief Justice Earl Warren can be blamed for left a bit to be desired. “The Warren Court brought us Roe v. Wade,” he asserted. In fact, it was the Supreme Court under Chief Justice Warren E. Burger that issued the 1973 abortion decision, with a 7-to-2 majority opinion joined by three of President Richard M. Nixon’s four appointees, including the chief justice.

Well, the details matter less, anyway, than the overall theme, which is: be afraid, be very afraid. Or to put it another way, in the words of the old Janis Joplin song: get it while you can. This is as good as it’s going to get.

That impulse may also explain the court’s otherwise mysterious decision a few weeks ago to grant review in a new church-state case, Town of Greece v. Galloway. The western New York town is appealing a federal appeals court’s decision that its practice of opening town board meetings with a prayer violates the Establishment Clause.

The problem that the United States Court of Appeals for the Second Circuit found was not the notion of prayer as such (the Supreme Court upheld the concept of legislative prayer 30 years ago but the fact that nearly all the prayers offered at the board meetings were Christian, with most containing explicit references to Jesus and/or Christian theology. That pattern, the appeals court said, meant that “the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint.” Other federal courts confronted with similar facts have ruled the same way.

In recent years, the Supreme Court has been able to find near-unanimity in religion cases only by deciding the cases on the narrowest possible grounds. So what would motivate the justices to reach for this little case, with its facts that are surely inauspicious for those who want to elevate the role of religion in the public square? I suppose the answer is: there’s nothing to lose, and if we don’t go for it now, it may only get harder in the years ahead.

Get it while you can — or even if you can’t. We’ll see soon enough.