Recommended Reading: the future of affirmative action

Affirmative action, for better or for worse, may come to an end in the United States during the Supreme Court's next term. On February 21, the Court agreed to hear arguments in the case of Fisher v. University of Texas, in which Abigail Noel Fisher, a former applicant to the University of Texas, contends that her denial of admission was based on race (she is white) and that minority students with less-impressive academic credentials were admitted instead of her due to the influence of race-based affirmative action on the university's admissions process. The issue at hand is whether the Fourteenth Amendment's assurance of "equal protection under the law" supports or invalidates the system in place at the University of Texas in particular and race-based affirmative action in general, and whether standing jurisprudence on the issue should be re-affirmed or discarded as a consequence.

Obviously, this case has the potential to have a profound impact on higher education, since affirmative action could be definitively ruled unconstitutional, radically impacting admissions procedures at colleges and universities throughout the United States. Since the Supreme Court is much more right-leaning than it was the last time this issue was brought before the justices (in the 2003 case of Grutter v. Bollinger which upheld, affirmative action at the University of Michigan, with minor alterations), that potential is now much closer to a reality. Fisher v. University of Texas may be the most important upcoming Supreme Court case after the challenge to the Affordable Care Act and President Obama's health care reform agenda.

Therefore, as you can imagine, everyone from established journalists to opinionated pundits have weighed in on affirmative action both in the aggregate and with respect to the specific case of Ms. Fisher. Here's a selection of some of the better pieces, all of which are worth reading if you're interested in understanding this important issue from all sides:

"Affirmative action review due next term"
Lyle Denniston, SCOTUSblog
SCOTUSblog, as always, is the best source for a summary of the case, a history of the issue at hand, and a discussion of the different sides, their arguments, and how the Court will likely react.

"Room for Debate: Beyond Race in Affirmative Action"
Various contributors, New York Times
The New York Times provides a great collection of contributions from law professors, authors, and even a theoretical physicist in a special "Room for Debate" section devoted purely to the controversy surrounding Fisher v. University of Texas and affirmative action in general. Six individuals comment on the politics, history, and merits of each side of the issue and provide a variety of unique perspectives.

"College diversity at risk"
Lee C. Bollinger, Washington Post
Bollinger is the president of Columbia University and served as a defendant in the 2003 affirmative action cases Grutter v. Bollinger and Gratz v. Bollinger. He argues in this op-ed, which came out before the Supreme Court decided to hear arguments in Fisher v. University of Texas, that affirmative action is essential to preserving diversity in college campuses, and that the court should not only refuse to hear the case, but that it should re-affirm its prior rulings in favor of race-based affirmative action.

"Bad Marriage: Why the Supreme Court Should Stay Out of Affirmative Action"
Richard Thompson Ford, Slate Magazine
It's obvious that Ford supports affirmative action, but his argument that the Supreme Court should stay out of such a politically-charged and controversial issue is compelling nonetheless. He suggests that the Court's previous decisions on affirmative action "have been a disaster: They haven’t made university admissions any fairer, and they’ve sown confusion, resentment, and frustration," and, in comparing the debate to "a couples therapy session in a dysfunctional marriage," characterizes the Court as "an incompetent therapist, [which] has encouraged anger and distrust while making it harder to confront the root causes of disagreement."

"Will the Supreme Court End Affirmative Action?"
Dan Slater, The Daily Beast
Slater writes in reaction to the outcries from supporters of affirmative action over the Supreme Court's decision to hear the Fisher case and argues that precedent and Court protocol suggest that the justices won't be so bold as to strike down something as influential and mainstream as affirmative action. He says that the combination of a lack of both disagreement among the lower courts and demonstrable harm to Ms. Fisher (she already attended and graduated from Louisiana State University upon being denied admission to the University of Texas and is, essentially, only seeking a refund of her $100 application fee) all but guarantee that the Supreme Court won't overturn decades of precedent to make a statement on affirmative action.

Supreme Court to hear oral arguments today regarding an important environmental law case

The Supreme Court heard oral arguments this morning in Sackett v. EPA, an environmental law case in which Mike and Chantell Sackett of Idaho are suing the Environmental Protection Agency (EPA) over an alleged violation of their Fifth Amendment right to due process. When the Sacketts attempted to build a house on property that they purchased in 2005, the EPA determined that what they owned was a wetland, protected under the Clean Water Act, and issued them with an Administrative Compliance Order (ACO) as a means of halting their construction without harsh penalties and fines. Since ACOs may not be challenged in court, the Sacketts sued, claiming that the EPA was denying them due process.

One the surface, this seems like an obvious complaint on the part of the Sacketts, but I examined this issue further in a paper that I wrote for Prof. Rich Pepino's "Environmental Law" course this past semester, and saw that not only does the EPA have a strong case supported by both the law and the facts (and favored by every lower court that has ruled on this issue), but that the implications of a Supreme Court decision in support of the Sacketts would be devastating to the EPA's regulatory capabilities and, indeed, the ability of the federal government as a whole to enforce all sorts of laws.

ACOs are perfectly constitutional because they do not contain penalties in and of themselves. Instead, should the Sacketts violate the EPA's order to stop building their house, the EPA will proceed with a suit against them in federal court - an action which does contain the possibility of penalties, but which the Sacketts may also challenge in the courtroom, thereby preserving their right to due process. Naturally, the EPA uses ACOs as a frequent tool to avoid costly and complicated legal battles. If someone is accused of violating environmental laws, the agency essentially asks them to stop their violation, allowing the violator to come into compliance with the law instead of facing civil or criminal charges in court. A Supreme Court decision in favor of the Sacketts (aside from being incorrect, in my opinion) would seriously disrupt the abilities of the EPA and other government agencies to enforce the law through means other than the costly, time-consuming, and complex federal court system.

SCOTUSblog, an online publication of Bloomburg Law which tracks and analyzes the Supreme Court and its decisions, provides a preview of Sackett v. EPA which, unfortunately, suggests that the Court may side with the Sacketts and strike a severe blow to the EPA. "It is quite rare for the Court to step in under those circumstances, and the temptation is strong to conclude that the Court has granted review in order to reverse." writes the blogger. "The Court has grown somewhat suspicious of the grasp of federal agencies — including the EPA," and this case may give it the opportunity to act where it has been unable to do so in the past. An observer of the argument has also posted that the lawyer for the EPA has been buckling under pressure from the justices - namely Samuel Alito - with respect to EPA's treatment of the Sacketts. The title of his post, "A weak defense of EPA," says it all. 

This case involves a complex and, I think, fascinating legal question with far-reaching implications. Regardless of how the Supreme Court rules, the impact on federal law enforcement with respect to, and apart from, environmental regulations, will be significant.