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Chief Justice #JohnRoberts Wants To Know Exactly When #AffirmativeAction Can Die

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WASHINGTON — The U.S. Supreme Court split bitterly on the issue of affirmative action in public universities on Wednesday, casting doubt on whether considering race in college admissions will remain legal much longer.

In a hearing that extended well beyond the initial one-hour limit, the justices once again were divided on whether the plan the University of Texas at Austin uses when admitting students — which considers race as one of many factors for a portion of new admissions — is constitutional.

“What’s wrong with this plan if need is put aside?” a skeptical Justice Sonia Sotomayor asked Bert Rein, the lawyer for Abigail Fisher, the white student who was denied admission to the university under a scheme that she claims violates the Constitution.

By “need,” Sotomayor meant the need for diversity, which the court has deemed acceptable as a matter of constitutional principle. She seemed to want a commitment on whether this should remain the benchmark.

Sotomayor and her liberal colleagues, Ruth Bader Ginsburg and Stephen Breyer, posed tough questions of Rein and reflected on how the court’s own pronouncements on affirmative action seem to undermine Fisher’s case. (Justice Elena Kagan recused herself due to her involvement with the case when she was solicitor general.)

“I’m saying R-A-C-E,” said Breyer, after Rein seemed to avoid multiple questions on whether the use of race as one of many criteria can remain constitutional. “What are the things that, in your view, would be okay?”

When it came time for UT’s lawyer to argue the school’s position, Chief Justice Roberts seemed to want a timeline for an end to affirmative action programs, alluding to a 2003 case in which the Supreme Court predicted race-conscious programs would no longer be needed in 25 years.

“Are we going to hit the deadline?” he asked. “Is this going to be done, in your view, in 12 years?”

Under that 2003 decision and an earlier 1978 ruling, public universities may consider race as one of many factors when selecting their entering classes. Under those precedents, admitting some applicants of color is permissible for the limited purpose of reaching a diverse “critical mass” of students.

The justices referenced these cases time and again. And in the end, it seemed that Justice Anthony Kennedy — often a pivotal vote — would hold the reins of the final outcome.

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