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.