Opponents of the Affordable Care Act had better look out; in the battle over who's going to punch their SCOTUS "frequent petitioner" card first, Abigail Fisher is a close second.
Fisher, you might remember, was denied admission to the University of Texas at Austin in 2008 and then sued to get in, claiming the state's policy of granting admission to UT to the top 10 percent of graduating students in the state resulted in racial discrimination.
Who Decides What's a Critical Mass?
Instead, the Supreme Court remanded to the Fifth Circuit, instructing it to apply strict scrutiny to its analysis of whether the school still needed to take race into account in order to achieve a "critical mass" of diversity. The Fifth Circuit had instead given deference to university officials to make that determination.
By this time, Fisher had already graduated from Louisiana State University.
On remand, the Fifth Circuit -- this time applying strict scrutiny -- found that UT still hadn't achieved a "critical mass" of diverse students, meaning the 10 percent policy wasn't unconstitutional and Fisher couldn't get what little relief she could get by then.
After all that, Fisher petitioned for a rehearing en banc, which the Fifth Circuit denied earlier this week. Five judges, led by Judge Emilio Garza (who also dissented in the panel decision), dissented from the denial of rehearing en banc. The dissental claimed that the panel didn't take the strict scrutiny analysis seriously because UT "fail[ed] to furnish any articulated meaning for its stated goal of 'critical mass.'"
Time for a face palm? You bet: The Project on Fair Representation, the legal fund set up to represent Fisher, announced that it would petition for cert. in the U.S. Supreme Court. Again. Lyle Denniston of SCOTUSblog notes that Fisher might be too late to get her case heard this term, but she could definitely reappear next term.
The question remains what Fisher gets out of this. She's already finished school at LSU! Believe it or not, her relief is still officially getting back her housing deposit and application fee from UT, which amount to $100. She just wants her money -- and certainly it's just a coincidence that the Project on Fair Representation is a branch of Project Liberty, which is funded by the Heritage Foundation, the Federalist Society, and other groups that seek to promote "limited government" and "free enterprise."
So is this a purely political statement at this point? It certainly appears that way. There's essentially nothing left for Fisher to gain; as the Austin American-Statesman observed in an editorial in July, "UT didn't reject Fisher maliciously or discriminately. She just failed to make the university's cut. It's time she finally let her lawsuit go."