This is a Kato Daily Podcast for Thursday, September 19th, 2013.

I'm Caleb Brown.

The big affirmative action case at the Supreme Court this term got many people's hopes up,

but it turned out to be a fizzle.

Gail Harriet, a professor of law at the University of San Diego and member of the U.S. Commission

on Civil Rights, argues that case might be back.

She took stock of the state of affirmative action at the Cato Institute's

Constitution Day held Tuesday.

The big case was 10 years ago and that is Grutter versus Bollinger. And Grutter versus Bollinger.

And Grutter versus Bollinger ended up,

it was a 5-4 decision, very narrow.

It ended up basically giving a green light

to colleges and universities to do what they wanted to do,

with regard to racial preferences.

And in that case, Justice Sandra Day O'Connor

said that the court should defer

to the educational judgment of colleges and universities.

Now, and that obviously has huge implications, as you mentioned before we started recording here, if this had been done,

not that many decades earlier, we would have seen very different policies being adopted.

The notion of deferring to the judgment of a discriminating state agency is really quite

foreign to the standard constitutional doctrine of strict scrutiny.

The usual rule is that courts are supposed to strictly scrutinize any law that discriminates

...