The Supreme Court has granted certiorari in Fisher v. University of Texas, a case that may allow the Court to revisit the constitutionality of affirmative action in higher education. Justice Elena Kagan has recused herself from the case.
My colleagues, Gail Heriot and Todd Gaziano, and I filed an amicus brief in support of cert., arguing, among other things, that affirmative action actually harms many of its intended beneficiaries.
Conservatives are encouraged by the position taken by Roberts, Scalia, Thomas, and Alito in the Seattle and Louisville cases. With the recusal of Kagan, the chance for positive change in affirmative-action jurisprudence comes down to (once again) Kennedy.