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Sotomayor Once Saved College Affirmative Action. Can She Again?

The Supreme Court announced that it would rehear Fisher v. University of Texas at Austin on the very last day of its last term. It would be the second time the Justices had taken up the case, the first being in its 2012 term, and granting cert. didn't come quickly. The Court sat on petition for not one, not two, but six scheduling conferences before the Justices agreed to hear the case.

With Fisher, waiting was nothing new. When the Justices first heard the case, they took eight months to release a decision, an unusually long time. Turns out, that wait involved charged and bruising deliberations -- deliberations that completely changed the nature of the ruling after a scathing draft dissent by Justice Sotomayor forced the majority to back down.

The Ruling That Almost Was

In brief, Fisher deals with a Texas woman who was denied admissions to the University of Texas at Austin under a system that gives automatic admission to the top 10% of the state's public school graduates and considers race alongside other factors for the rest of its applicants. Abigail Fisher, a white girl denied admission, sued, saying the University's consideration of race was unconstitutional discrimination. When the Court eventually ruled on the case the first time around (now known as Fisher I), it issued a "non-decision," skirting the major claims and sending the case back to the Fifth Circuit.

However, a majority of the Court was willing to strike down Texas' race-conscious admissions system, according to Reuters' Joan Biskupic. (Note: Reuters is a FindLaw sister company.) That majority included the Court's predictable conservative members along with Justice Kennedy, the constant swing vote and a regular supporter of affirmative action in education in word, but rarely ever deed.

That would have radically changed the way public colleges admitted candidates, making it much more difficult for them to recruit minority students. It also could have ended a string of Supreme Court precedents, dating back almost 40 years, which have allowed affirmative action in admissions, but with greater hesitance each time the Court ruled.

Sotomayor's Story Shuts Down the Majority

What caused the change? Sotomayor's dissent, which Biskupic describes in an interview with ProPublica. The dissent was filled with Justice Sotomayor's personal experience growing up as a Puerto Rican girl in the Bronx. The gist: "You haven't lived it and you don't get it," Biskupic writes. It was an impassioned defense of affirmative action and helped Justice Breyer convince Kennedy to compromise, resulting in the punt of Fisher I.

Though that dissent was never released, we may have seen some of it in Schuette v. Coalition to Defend Affirmative Action. There, Justice Sotomayor called the majority "out of touch" with reality and declared that "the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race."

Was Justice Sotomayor's success in Fisher I a pyrrhic victory? The Court is set to take up the issue once more, this upcoming term. Again, Justice Kennedy is expected to be the swing vote. We'll see if Sotomayor's words and experiences will be strong enough to sway him once again.

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