When the Supreme Court was considering the constitutionality of President Obama‘s health care law earlier this year, Democrats and progressives were organized in strong support of it. Liberal organizations wrote dozens of analyses of the benefits of “Obamacare.” Progressive columnists warned the court would be stepping beyond its bounds if it struck the law down. Two months before the decision, President Obama delivered a spirited defense of the law and suggested the court would be violating “well-established precedents” by gutting Obamacare.
Don’t expect to hear the same united voice among Democrats when the court determines the fate of affirmative action, starting with oral arguments today and a decision likely this summer. (The specific case involves a white woman named Abigail Fisher, who sued after being denied admission to the University of Texas Austin.) Members of both parties expect racial preferences to be eliminated by the court largely because its five conservative-leaning justices have shown hostility to affirmative action in the past.
But those justices were no doubt aware striking down health care reform would be highly polarizing, pitting them against roughly half of the electorate. In the case of the race-based affirmative action, that won’t be the case: many Democrats oppose the practice, and some of the key liberal voices in the country are lukewarm about it.
Affirmative action bans have been passed in states full of Democrats, such as California and Michigan. New Hampshire, another state Obama won in 2008, adopted a measure earlier this year that bans affirmative action by colleges in hiring or admissions decisions. While little polling has been done recently, most surveys have found a majority of Americans oppose racial preferences.
A report released last week by the Century Foundation, a progressive think tank, detailed how a range of universities have achieved diversity without regard to race. The report advocates race-neutral programs like one used by the University of Texas, which admits students who attend the state’s high schools and finish in the top 10 percent of their class. (Fisher did not finish in the top 10 percent and is filing suit because she was not admitted to one of the school’s slots outside of that 10 percent program, which are currently allocated through a formula that includes race.)
The Obama administration has filed a brief supporting the University of Texas in the case, repeatedly quoting U.S. military officials extolling the virtues of diversity. But the president himself has not and is very unlikely to speak of his support of affirmative action in the same forceful way he did on health care.
To be sure, strong voices are showing their support of affirmative action. A group of 17 U.S. senators, all Democrats, filed a brief in support of racial preferences, as did a wide swath of influential organizations, such as Teach for America and the presidents of several Ivy League schools.
“A diverse student body adds significantly to the rigor and depth of students’ educational experience. Diversity encourages students to question their own assumptions, to test received truths, and to appreciate the spectacular complexity of the modern world,” the university presidents wrote in their brief.
But gap between this advocacy and that of health care is unmistakeable. And while we will never know exactly why Chief Justice John Roberts opted against striking down the health care law, he obviously faced significant public pressure. The court would have inserted itself into a highly-divisive matter and annoyed the president and his supporters greatly.
On affirmative action, Roberts and the court’s conservatives won’t face such pressures. A ruling ending racial preferences will be greeted by enthusiasm from Republicans and muted opposition from others.
Follow Perry Bacon Jr. on Twitter at @perrybaconjr