- NEW: Justices raise previous affirmative action case, wonder aloud why they're hearing new one
- NEW: Conservative justices seize initiative in arguments on application of race-conscious policy
- University of Texas sued by student who was rejected for admission
(CNN) -- The race-conscious admissions policy at the University of Texas appeared to be in trouble on Wednesday after the conservative Supreme Court majority repeatedly questioned its continued application and effectiveness.
The Justices heard oral arguments in an affirmative-action case that explores whether the flagship state university's admissions practices aimed at creating campus diversity violate the rights of some white applicants.
Abigail Noel Fisher sued the school after her application was rejected in 2008 when she was a high school senior in Sugar Land, Texas.
Opinion: Keep affirmative action but reform it
Fisher claimed the individualized, discretionary admission policies violated her rights, and favored African-American and Hispanic applicants over whites and Asian-Americans.
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The Supreme Court upheld most of the Affordable Care Act, the Obama administration's health care reform law, on June 28, 2012. The decision could determine how hundreds of millions of Americans receive health care in the future. Here's a look at other landmark Supreme Court cases.
Activists rally in February 2012 to urge the Supreme Court to overturn its decision that fundamentally changed campaign finance law by allowing corporations and unions to contribute unlimited funds to political action committees not affiliated with a candidate.
Gregory Lee Johnson lights a flag on fire to protest the Reagan administration and some Dallas-based corporations. Johnson was convicted of desecrating a venerated object but the court overturned the verdict on First Amendment grounds.
President Richard Nixon claimed executive privilege over taped conversations regarding the Watergate break-in in an attempt to keep the tapes out of a congressional investigation. The Supreme Court ruled that executive privilege is not ironclad.
Wanda McCorvey, identified as "Jane Roe" sued the Dallas County, Texas, District Attorney Henry Wade over a law that made it a felony for her to have an abortion unless her life was in danger, citing her personal liberty. The court agreed with Roe and overruled any laws that made abortion illegal in the first trimester.
Ernesto Miranda confessed to a crime without the police informing him of his right to an attorney or right against self-incrimination. His attorney argued in court that the confession should have been inadmissible because police did not properly inform him of that right. The court agreed and the "Miranda Rights" got their name.
In 1961, Clarence Earl Gideon was convicted of burglary after he was denied the right to an attorney by a Florida court. Convinced that Constitution guaranteed him the right to an attorney, he wrote a note from his prison cell to the Supreme Court, which unanimously overturned the verdict.
Dollree Mapp was arrested under an Ohio law for possession of obscene materials after police entered her home waving a piece of paper and calling it a warrant. The Court ruled that states could not violate the Fourth Amendment right to reasonable search and seizure, which rendered evidence gained that way inadmissible.
Nathaniel Steward, 17, recites his lesson surrounded by white classmates at the Saint-Dominique School, in Washington, the first school in which the Supreme Court ruling banning school segregation was applied.
Fred Korematsu, a Japanese-American man, was arrested after authorities found out he claimed to be a Mexican-American to avoid being imprisoned in an interment camp during World War II. The court ruled that the rights of individuals were not as important as the need to protect the country during wartime.
Homer Plessy, who was of mixed descent, said because he was 7/8 white and 1/8 black, he should be alowed to ride the whites-only car on a segregated railway in Louisiana. The court upheld a 1890 state statute requiring railway cars provide separate but equal accomodations.
The front page of 'Frank Leslie's Illustrated Newspaper' reports the Dred Scott case, in which the court ruled that a slave could not gain his freedom by entering a state in which slavery was outlawed. The decision inflamed anti-slavery sentiment in the North.
Gibbons v. Ogden was the first case to establish Congress' power to regulate interstate commerce. The ruling signaled a shift in power from the states to the federal government and was later used as part of the basis of the Civil Rights Act of 1964.
In response to the federal government's controversial decision to institute a national bank, Maryland tried to tax the bank out of business. A customer sued Maryland and the court ruled that the implied powers in the Constitution allowed the federal government to create a national bank and that national supremacy made Maryland's actions unconstitutional.
Outgoing President John Adams tried to appoint a number of Federalist loyalists to to judicial positions but some of the appointments had not been delivered by the time Thomas Jefferson took office. Jefferson instructed his Secretary of State James Madison (pictured) to stop delivery on the appoinments, including that of William Marbury, who sued. The court's ruling established the principal of judicial review -- the court's ability to rule on a law's constitutionality.
Independent Business v. Sebelius (2012)
Citizens United v. Election Commission (2010)
United States v. Nixon (1974)
Miranda v. Arizona (1966)
Gideon v. Wainwright (1963)
Brown v. Board of Education (1954)
Korematsu v. United States (1944)
Plessy v. Ferguson (1896)
Dred Scott v. Sanford (1857)
McColloch v. Maryland (1819)
Marbury v. Madison (1803)
Cases that changed America
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In 2005, Chief Justice John G. Roberts was nominated by President George W. Bush to succeed Justice Sandra Day O'Connor as an associate justice. After Chief Justice William Rehnquist died, however, Bush named Roberts to the chief justice post. The court has moved to the right during his tenure, although Roberts supplied the key vote to uphold President Barack Obama's Affordable Care Act.
Justice Antonin Scalia, 76, was appointed by President Ronald Reagan in 1986 to fill the seat vacated by Justice William Rehnquist when he was elevated to chief justice. A constitutional originalist -- and a colorful orator -- Scalia is a member of the court's conservative wing. He is currently the court's longest-serving justice.
Justice Anthony M. Kennedy, 76, was appointed to the court by President Ronald Reagan in 1988. He is a conservative justice but has provided crucial swing votes in many cases, writing the majority opinion, for example, in Lawrence v. Texas, which struck down that state's sodomy law.
Justice Clarence Thomas, 64, is the second African-American to serve on the court, succeeding Justice Thurgood Marshall when he was appointed by President George H. W. Bush in 1991. He is a conservative, a strict constructionist who supports states' rights.
Justice Ruth Bader Ginsburg, 79, is the second woman to serve on the Supreme Court. Appointed by President Bill Clinton in 1993, she is a strong voice in the court's liberal minority.
Justice Stephen G. Breyer, 74, was appointed to the court in 1994 by President Bill Clinton. He is considered a member of the court's liberal minority.
Justice Samuel A. Alito Jr., 62, was appointed by President George W. Bush in 2006 and is known as one of the most conservative justices to serve on the court in modern times.
Justice Sonia Sotomayor, 58, is the court's first Hispanic and third female justice. She was appointed by President Barack Obama in 2009 and is regarded as a resolutely liberal member of the court.
Justice Elena Kagan, 52, is the fourth female justice and a member of the court's liberal wing. She was appointed in 2010 by President Barack Obama and is the court's youngest member.
Photos: Today's Supreme Court
Is affirmative action constitutional?
Fisher just missed the opportunity of automatic admission to the main campus at Austin for in-state students finishing in the top 10% of their high school graduating class. So, she had to compete in a separate pool. It is that selection process that is before the court.
The Supreme Court was clearly divided along ideological lines about whether affirmative action essentially has run its social and legal course, and should no longer be used in the way schools like Texas and others have done.
Student voices differ on diversity
"You're trying to gut it," Justice Sonia Sotomayor said to Fisher's lawyer about the current legal precedent set in 2003.
She suggested that a university deserves some flexibility to create the kind of diverse campus environment it wants.
But Chief Justice John Roberts repeatedly asked, "What is the 'critical mass' of African-Americans and Hispanics at the university that you are working toward?"
When the school's lawyer said there was no specific number, Roberts pressed, "So how are we supposed to tell whether this plan is narrowly tailored to that goal? What is the logical end point?"
Justice Anthony Kennedy may prove the deciding or "swing" vote and could strike a compromise position -- possibly toss out the specific plan in question, while generally preserving the future use of affirmative action in more limited circumstances.
The school, with a 52,000-student body, defends its "holistic" policy of considering race as one of many factors -- including test scores, community service, leadership and work experience.
The Obama administration backed the school.
"Everyone competes against everyone else. Race is not a mechanical automatic factor. It's an holistic individualized consideration," said U.S. Solicitor General Donald Verrilli.
African-Americans in Texas as a whole represent about 12% of the population, but comprise about 5% of students at the University of Texas.
Much of the discussion during arguments surrounded the definition of "critical mass" -- how a university can use metrics to determine when it has reached the right mix of minority students to achieve diversity.
Justice Stephen Breyer wondered why his colleagues were even debating the issue following 2003 high court ruling that found state universities could narrowly set up admissions policies to consider an applicant's race.
The relevant high court case from nine years ago dealt with the University of Michigan's admission programs. The issue was divisive, with Justice Sandra Day O'Connor the swing vote upholding the law school's admissions criteria.
O'Connor, who is no longer on the bench, predicted affirmative action would no longer be needed in 25 years, offering a gentle push to institutions to keep that timeline in mind. Nearly a decade later, however, the newly-configured court may be poised to issue a more dramatic statement on the use of race.
The Texas school modified its admission policy to include race as one factor shortly after the 2003.
The court's more conservative members seized the initiative during arguments.
Roberts questioned how schools were to measure classroom diversity among students who come from mixed race families.
Justice Samuel Alito suggested it was unfair to place Asian-Americans into one group, when they come from a wide range of cultures-- Filipinos, Chinese, and Afghans among them.
"I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before," he told Gregory Garre, representing the school.
Garre said the school wants minorities from different backgrounds.
"We go out of our way to recruit minorities from disadvantaged backgrounds," he said.
Kennedy jumped in.
"So what you're saying is that what counts is race above all," he said. "You want underprivileged of a certain race and privileged of a certain race. So that's race."
Kennedy added later: "I thought that the whole point is that sometimes race has to be a tie-breaker and you are saying that it isn't. Well, then, we should just go away. Then we should just say you can't use race, don't worry about it."
The young woman who is challenging affirmative action
Fisher graduated this year from Louisiana State University.
A ruling is not likely before early next year.
The current case is Fisher v. University of Texas at Austin (11-345).
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