Page:Fisher v. University of Texas at Austin, 579 U.S. (2016) (slip opinion).pdf/74

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heavy burden. In Adarand, for instance, another case in which the Court clarified the rigor of the strict scrutiny standard, the Court acknowledged that its decision “al­ter[ed] the playing field in some important respects.” 515 U. S., at 237. As a result, it “remand[ed] the case to the lower courts for further consideration in light of the prin­ciples [it had] announced.” Ibid. (emphasis added). In other words, the Court made clear that—notwithstanding the shift in the law—the government had to meet the clarified burden it was announcing. The Court did not embrace the notion that its decision to alter the stringency of the strict scrutiny standard somehow allowed the gov­ernment to automatically prevail.

Third, the majority notes that this litigation has per­sisted for many years, that petitioner has already gradu­ated from another college, that UT’s policy may have changed over time, and that this case may offer little prospective guidance. At most, these considerations coun­sel in favor of dismissing this case as improvidently granted. But see, e.g., Gratz, 539 U. S., at 251, and n. 1, 260– 262 (rejecting the dissent’s argument that, because the case had already persisted long enough for the petitioners to graduate from other schools, the case should be dis­missed); id., at 282 (Stevens, J., dissenting). None of these considerations has any bearing whatsoever on the merits of this suit. The majority cannot side with UT simply because it is tired of this case.

It is important to understand what is and what is not at