Since Brown v. Board of Education (1954), the U.S. Supreme Court has viewed itself as the enlightened molder of social consensus, leading the recalcitrant political branches to reach progressive outcomes demanded by social justice. Sometimes (as with desegregation) the Court manages to get in front of the parade of public opinion, and sometimes (as with same-sex marriage) the Court forces unruly voters to accept a particular end result. But, as with abortion, sometimes the Court miscalculates, becoming enmired in an intractable political dispute. And in Regents of the University of California v. Bakke (1978), the Court—fueled by the conceit of its superior wisdom—divined a “solution” to disparate race enrollments in higher education that has proven to be a quagmire.
Two years ago, in his annual State of the Union address, President Obama publicly upbraided the Supreme Court, six of whose members were seated immediately before him in their robes, alongside chiefs of the military.
The President delivered this unprecedented public rebuke because a week earlier the Court had upheld the legality of the corporate and union financing of political advertising, something not to his advantage, and hence not to his liking. He declared:
‘With all due deference to the separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests.’
From their expressions and body language, the six justices were not too pleased by receiving that pubic reprimand from the President who may yet in turn rue having delivered it. For yesterday (February 21), the Court announced that later this year it will hear a case with potential to inflict on the President serious political damage in the immediate run-up to the November elections.
The case that the Court has decided to hear is that between Abigail Fisher and the University of Texas. The plaintiff is a young white woman who, in 2008, unsuccessfully applied to the University of Texas at Austin. She claims that her application was unlawfully turned down on account of race and in contravention of her Fourteenth Amendment constitutional right to equal protection under the law. Her grounds for making this claim are that the University admitted in preference to her several academically less well qualified minority applicants without any good cause.