With Affirmative Action in Jeopardy, Lawyers Swap Argument Focus

Defenders of affirmative action are emphasizing “text and history” rather than precedent as they face longer odds to win over a majority on a 6-3 conservative-led Supreme Court.

Six years ago, in Fisher v. UT Austin, the justices reaffirmed 40 years of precedent to say schools can consider race in admissions. But after the conservative bloc in June overturned the court’s nearly 50-year-old abortion right, invoking precedent isn’t likely to be persuasive in a pair of affirmative action cases being argued Oct. 31.

“It would be bad lawyering at this point not to be very conscious ...