The affirmative-action hearings at the Supreme Court

October 31, 2022 • 2:00 pm

I’ve listened to the broadcast audio of the two cases of affirmative action before the Supreme Court. I didn’t learn much beyond the fact that lawyers on both sides are really good at ducking hard questions from the Justices. The judgment of the Court, I think, is preordained: either a 6-3 or a 5-4 ruling that prohibits considering race as a criterion to college admission. (The colleges at issue are Harvard and the University of North Carolina.)

The questions of the justices were pretty much as expected, with, surprisingly, Clarence Thomas speaking up quite a bit in the North Carolina case. He rarely says anything.

The most vociferous justices who are likely to vote to overturn Bakke were Alito, Barrett, Kavanaugh, and to a lesser extent Roberts, while all three liberal justices asked questions supportive of affirmative action.

The arguments were covered in real time by the New York Times with the amusing headline, “Conservative justices seem skeptical of affirmative action program.” (This is like “dog bites man.”)

Here’s the NYT’s summary of both cases, involving Harvard and the University of North Carolina:

The race-conscious admissions programs at Harvard and the University of North Carolina seemed to be in peril at the Supreme Court on Monday. By the end of five hours of vigorous and sometimes testy arguments, a majority of the justices appeared ready to reconsider decades of precedents and to rule that the programs were unlawful.

Such a ruling could jeopardize affirmative action at elite colleges and universities around the nation, decreasing the representation of Black and Latino students and raising the number of white and Asian ones.

Here are some of the major developments:

  • Members of the court’s six-justice conservative majority asked skeptical questions about the interest in educational diversity that the court has said justifies taking race into account in admissions decisions.

    “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,” Justice Clarence Thomas said. “It seems to mean everything for everyone.”

    Justice Samuel A. Alito Jr. asked a similar question about the term “underrepresented minority.”

    “What does that mean?” he asked, adding that college admissions are “a zero-sum game” in which granting advantages to one group necessarily disadvantages others.

  • The court’s three liberal members put up a spirited defense of affirmative action.

    Justice Ketanji Brown Jackson said it would be odd if admissions officers could consider factors like whether applicants are parents, veterans or disabled — but not if they are members of racial minorities. That has “the potential of causing more of an equal protection problem than it’s actually solving,” she said.

    Justice Elena Kagan said she was worried about “a precipitous decline in minority admissions” were the court to rule against affirmative action in higher education. “These are the pipelines to leadership in our society,” she said of elite universities.

  • Chief Justice John G. Roberts Jr. asked questions about race-neutral means of achieving diversity, suggesting that he might be looking for a way to limit the sweep of a decision rejecting race-conscious programs.

  • The court’s decision in the two new cases — Students for Fair Admissions v. Harvard, No. 20-1199, and Students for Fair Admissions v. University of North Carolina, No. 21-707 — will probably land in June.

It’s absolutely clear that the conservative justices are indeed dubious about affirmative action; I have no reason to change my prediction.

What I think about the decision will, of course, depend on how it comes down. I still cannot find myself on the side of the plaintiffs (or the conservative justices), as I see affirmative action as a useful form of reparations. The Bakke case ruled, in contrast, that diversity was of value as an “inherent good”, but I think the former argument is more defensible since the latter assumes that ethnic diversity is paramount over other forms of diversity (the conservative justices kept bringing up religious diversity), and that, in what seems a patronizing view, all members of a given ethnicity share similar “goods” that they bring the campus (i.e., have similar opinions).

Given that the justices will almost surely strike down Bakke, I’ve suggested that a “race neutral” solution might be to use socioeconomic status as an admissions criterion: fostering “socioeconomic diversity”. This will also increase ethnic diversity as a byproduct, but perhaps not in a way that would violate the court’s upcoming decision. And that solution implicitly addresses the “reparations” criterion rather than the ‘inherent good” criterion.

The Harvard hearings were similar to the UNC hearings, and the Justices’ arguments against race-based admissions largely the same: “how long will this last?”; “What about other criteria for diversity?”, “Isn’t this like Harvard’s old Jewish quota?”, and so on. There was more concentration on whether Harvard was using “personality scores” as a way to reduce Asian-American admission, for that was the impetus for the suit in the first place: an “Asian quota” supposedly enforced by deliberately rating that group down on personal traits.

One note: Elizabeth Prelogar, the U.S. Solicitor General who’s argued in both cases for affirmative action, did a terrific job. All the lawyers clearly prepared thoroughly for this important hearing, but Prelogar was the quickest with comebacks to criticism of affirmative action.

If you’ve listened or read about these cases, I welcome your comments below.

23 thoughts on “The affirmative-action hearings at the Supreme Court

  1. Except for maybe a couple of decades following desegregation and the CRA, affirmative action based on race should have been replaced with giving some preference based on socioeconomic status. What is by far the number one predictor of every single life outcome that contributes to a person’s wellbeing and security (and “happiness,” as it’s measured in various studies)? It’s not race, sex, gender, sexual orientation, religion, etc. It’s socioeconomic status. I’ve known a lot of black and other minority students in university and grad schools, and most came from very privileged backgrounds. I’ve also known a lot of white people who came from very poor backgrounds.

    And, if diversity itself is an inherent good, then (1) using socioeconomic status will bring in minorities AND ensure that far more of them are actually disadvantaged, and (2) the poor people I’ve known have had far more diverse opinions and backgrounds than the socioeconomically privileged ones.

    1. And with the influx of international students, a lot of people in these “minority” groups are actually very well off (generally speaking, you’d have to be to afford the premiums on top of the exorbitant college tuitions). Notwithstanding, even back when I attended grade school (a little over a decade ago), the kids driving the BMWs and German sports cars were all South-East Asian descent or recent immigrants. Race is a terrible factor if determining reparative needs — by now each category has high variance in status and class. Frankly, why beat around the bush and fixate on stereotypes when we could go straight to the goods and make parts of the college admissions’ process based on socioeconomic status. That is seems more straightforward then doing so in a fundamentally flawed roundabout way.

      1. Hey, did you ever get around to seeing his brother’s Calvary? It’s been several years and it’s still of the most brilliant movies I’ve seen in ages. In Bruges also continues to remain among my favorites of all time, and I imagine always will. “I’m sorry for calling you an inanimate object.” There are so many quotable lines and fantastic reaction shots in it. Gleeson and Farrell make an amazing pair. Oh, and his brother’s The Guard has another absolutely hilarious Gleeson performance, coupled with another hilarious performance from the baddies.

        1. Yes, I saw Calvary right after you recommended it to me. Loved it so much I watched it twice, back-to-back. I think we had a comment exchange about it afterward.

          1. Ah, sorry, I guess I forgot. My memory isn’t what it used to be. But that movie just blew me away. To deal with themes as varied as aging, suicide, religion, faith, revenge, and trauma, all in one movie, and with levity! It’s an absolute triumph. It should have swept up a whole bunch of Oscars, but I’d never expect a movie like that to do so.

            Have you seen The Guard? Gleeson is pitch perfect as always, but Don Cheadle shows off some comedy chops as the straight man, and Liam Cunningham (of the Onion Knight in Game of Thrones fame) and Mark Strong are delightful as the main baddies. The McDonaghs really have a knack for…well, everything, but especially for writing villains who have surprisingly complex inner lives and motivations which are somehow conveyed through very little dialogue/screen time. I love the small glimpse of Harry Waters’s home life that we get in In Bruges. He clearly loves his wife and children and, while he’s prone to losing his temper, he immediately apologizes to his wife. It’s a tiny moment that takes up less than a minute, but it tells you volumes as a viewer. Just one of so many examples throughout the brothers’ oeuvre.

            EDIT: Nooks and crannies?

            1. I haven’t seen The Guard, but I’ll check it out.

              Cheadle is one of the best, most versatile actors in the game today, IMO.

              I’ll say this for Ralph Fiennes’s Harry Waters character: He held himself to the same code he sought to apply to Colin Farrell’s “Ray” for mistakenly killing the altar boy by immediately offing himself after shooting the dwarf (whom he mistook to be a child).

              1. “You’ve got to stick to your principles.”

                Yep, honor is definitely a recurring theme in the McDonagh bothers’ movies. It’s a big part of The Guard.

                I love Ralph Fiennes as Harry. Every line he says is absolute gold. Really makes you realize just how important writing and delivery is. In fact, all of their movies make you realize that it’s the combination of those things that make something truly great. Imagine Rosencrantz and Guildenstern are Dead without Gary Oldman and Tim Roth, or Charlie Wilson’s War without Tom Hanks and Philip Seymour Hoffman (don’t know why, but those are the first two movies that popped into my head. I think Hoffman might have been the greatest actor in decades).

                And they have a way of getting away with lines that would otherwise be considered beyond the pale. The Guard has a lot of them, as does In Bruges. Like this one:

                That and the whole scene where Harry goes to buy a gun gets me every damn time.

  2. The questions of the justices were pretty much as expected, with, surprisingly, Clarence Thomas speaking up quite a bit in the North Carolina case. He rarely says anything.

    Clarence Thomas is notoriously taciturn from the bench — he once went a decade between questions at oral arguments — but has become downright garrulous of late, by his standards a regular Chatty-Kathy Clarence.

    I listened to most of the two arguments today, too, and heard nothing unexpected. I’ll be surprised if the result isn’t 6-3 against in both cases. I thought the quality of the advocacy was, in the main, impressive (if often evasive), especially that of Solicitor General Prelogar. Listening to her is like watching Steph Curry knock down three-pointers from the top of the key.

    1. Let me revise my prediction in one of the two cases to 6-2 against, since the Court’s newest justice, Ketanji Brown Jackson, has recused herself from the Harvard case, given that she was a member of Harvard’s Board of Overseers until her confirmation to SCOTUS last spring.

      Supreme Court justices can recuse themselves where their participation in a case would create the appearance of a conflict of interest — something you might not know based on at least one justice’s recent conduct.

  3. Interesting that Justice Roberts is thinking about race-neutral ways to achieve diversity in admissions. Substituting socioeconomic status for race has public support, whereas the current race-based while deceptively conducted “affirmative action” policy does not [ ]. One wonders why Harvard (and others) did not use socioeconomic status the first place, rather than their various thumb-on-the scales tricks to generate racial quotas without saying so. Could it be that a culture of thumb-on-the-scales trickery flowed into admissions offices from certain academic subject areas?

    1. One wonders why Harvard (and others) did not use socioeconomic status the first place, rather than their various thumb-on-the scales tricks to generate racial quotas without saying so.

      Because affirmative action based on socio-economic status would not give the outcome that they want. E.g. Tweet.

      1. Another relevant Tweet. The problem here is not that some racial/ethnic groups do better on school tests because they are from richer households, while other racial/ethnic groups do worse because they generally come from poorer backgrounds.

        1. And a third Tweet. Nor is the discrepancy caused by better-funded versus under-funded schools.

          There is a reason why they have to resort to full-blown: “tests are racist”, “standardised assessment is racist”, “math is racist”, “smash the entire system” ideology.

      2. Exactly why I was commenting yesterday on the need for clarity in this matter.
        Individuals (should) want as much education as they can handle, for the sake of their own future.
        Society wants the best minds to be fully exploited for the sake of the society’s future.
        Since governments make laws and policy for the sake of the whole society, we might expect a government to encourage maximal participation of the brightest, whoever they may be. No lunacy about quotas to keep out ‘too many’ Jews, or personality tests on unmet Asian Americans to keep their numbers down. Let me be clear, doing away with those things would make it harder for people like me—a white male— to get into a desirable course in a good university. Yet it would benefit the society I live in when the designs, inventions and creations of those bright students become reality. If we would like to see a future in which we have clean green energy, sufficient food, maybe colonisation of other planets and other wonders, we should want those clever souls to be encouraged, not declined because of their religion or skin colour. It sounds like bad dystopian science fiction to imagine a society that failed to develop nuclear fusion because of “too many Jews in this university”! There’s some actual real-life anti-racism in saying we don’t care if the European-origin whites in this university are a minority because we pick only the smartest students. And it might benefit me more in the long run than if I had been accepted there myself!

  4. The issue I take with the idea of AA in universities is that we are treating the symptom and not the problem. To let, for example, a black woman into a university because of her skin tone knowing that she is vastly underqualified is criminal. It will result in one more failure in her life on top of all the ways our society has failed her up to that point. Why are we not focused on the glide path of K-12? Getting the basics down properly allows for later success.

  5. If affirmative action is to be thought of as a form of reparation, it is a shame its benefits go to those among the African American population who probably have least need of it—ie those who are already teetering on the edge of qualifying for Ivy League entry, and thus more likely to already enjoy the benefits of two parents who have encouraged education. It would be nice to have some way to address what has become the sub-culture of an underclass, one which isn’t interested in education as a way out/up, but prefers the shortcut of criminality as the only solution to a hopeless situation.
    The other thing that amused me about the hearing at SCOTUS was the argument that because AA hasn’t worked to change the status of African Americans, it should be continued until it does. Same argument as used in 2003 when the court indicated it should be given longer to work. I don’t think we know who actually said ‘madness is doing the same thing over and over again and expecting a different result’ but it applies here. At some point one should recognise that if something isn’t working one should try a different approach.

  6. > I still cannot find myself on the side of the plaintiffs (or the conservative justices), as I see affirmative action as a useful form of reparations.

    Then there is no reason to hold down Asian American students to bump up African American and Hispanic students. Asian Americans were discriminated in the history and they need reparations too.

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