The affirmative action case before the Supreme Court on Wednesday wasn’t just a rematch for supporters and critics of race-based admissions policies in higher education.
The two heavyweight Washington litigators who faced off on the same issue at the high court in 2012, Wiley Rein LLP founding partner Bert Rein and Latham & Watkins LLP partner Gregory Garre, returned to the ring. Each hopes to come away with a ruling more decisive than the one justices delivered the last time.
The outcome was hard to predict after arguments. According to WSJ’s Jess Bravin, a divided Supreme Court appeared conflicted on the affirmative action question, with conservatives questioning the school’s use of racial factors and liberal justices voicing approval. Justice Anthony Kennedy, a possible swing vote, suggested that justices might need to send the case back to a lower court for additional fact finding on whether the admissions process at the University of Texas at Austin was working as intended.
As he did before, Mr. Rein represented Abigail Fisher, a white applicant rejected by the public university in 2008. Early on Justice Kennedy asked him how UT-Austin could maintain a diverse student body without considering race in admissions. The attorney, who argued that the policy is unconstitutional, suggested that UT-Austin could look at the socio-economic and geographic backgrounds of applicants.
Chief Justice John Roberts asked Mr. Garre, who represents the Texas school, when the need for racial preferences would no longer be necessary. Mr. Garre said he couldn’t give a precise date but said diversity would suffer without them.
In 2013 the Supreme Court declined to end affirmative action at the University of Texas at Austin, but instead asked a lower court to decide whether the campus adequately justified classifying individual applicants by race. In doing so, justices reaffirmed its 2003 position that student diversity remains a compelling interest that can justify using race as a factor.
Mr. Rein, a Harvard Law School graduate, is best known in the litigation world for his antitrust and commercial work, representing airlines in merger investigations and litigation and food and drug companies in tort and administrative procedure cases. It was around three years ago when he suddenly became a SCOTUS star, landing two major high court cases. In addition to the the affirmative action case, he represented Shelby County in its challenge of a key Voting Rights Act provision. He and the Alabama county prevailed in that one. (Reported : THE WALL STREET JOURNAL)
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