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The Supreme Court Is Operating Without a Leash

After an epic day of oral arguments in two affirmative action cases, it’s clear that the conservative justices will do what they want regardless of facts, law, or precedent.

Liu Jie/Getty Images

Monday’s oral arguments in Students for Fair Admissions v. UNC and Students for Fair Admissions v. Harvard lasted for nearly five hours, making it among the longest for a set of cases in the Supreme Court’s modern history. (Some nineteenth-century sessions took multiple days.) The justices touched upon nearly every aspect of the case as they questioned lawyers for both sides at length. And yet rarely has the outcome of a Supreme Court case felt so preordained as the likely downfall of affirmative action in higher education, no matter the factual or legal circumstances.

“You make some very good points in your brief, but reading it, I was struck by the fact that the word ‘Asian’ does not appear one time in your brief,” Justice Samuel Alito told a lawyer arguing in favor of the admissions program at the University of North Carolina. “Yet, Asian Americans have been subjected to de jure segregation. They have been subjected to many forms of mistreatment and discrimination, including internment. So do you have anything to say this morning about the interests of students of Asian background and how your arguments impact them?”

“Yes, Your Honor,” David Hinojosa, who represented UNC students on behalf of the Lawyers’ Committee for Civil Rights Under Law in favor of the policy, replied. “So, two points. One is that discrimination against Asian Americans is wrong. It’s bad. We do not condone it at all. But, two, our brief actually reflects the record in this case.” He noted that the plaintiffs had not raised claims of intentional discrimination, racial balancing, or mistreatment against UNC. Some of those claims had instead been raised in the parallel lawsuit against Harvard University that the court heard later that afternoon.

While the Supreme Court appears ready to abolish affirmative action in college admissions, the full extent of its decision won’t be known until sometime next year. The court’s six conservative justices seemed unwilling to stand by precedents in favor of race-conscious admissions policies during oral arguments on Monday. Even while some justices on the court’s right flank acknowledged the difficulties that such a decision could bring, others appeared eager to overturn decisions that had allowed the use of race in some circumstances in college admissions over the last half-century.

Among the latter group was Justice Clarence Thomas, who is a fierce opponent of affirmative action programs. In past concurring and dissenting opinions, he rejected any use of race under the equal protection clause, which he interpreted to be “color-blind,” and has compared some uses of affirmative action to segregationist theories that led to Plessy v. Ferguson. His hostility on Monday was unchanged. “I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means,” he remarked before asking the solicitor general of North Carolina to define it. “It seems to mean everything for everyone.”

The case comes from lawsuits by Students for Fair Admissions, or SFFA, a group that represents college applicants denied access to the two universities for purportedly racially discriminatory reasons. It is the brainchild of Edward Blum, a white conservative legal activist who has organized lawsuits against affirmative action programs and the Voting Rights Act for the past two decades. SFFA argued that any use of race in the admissions process violates the Fourteenth Amendment’s equal protection clause. UNC automatically falls under its prohibitions as a state university. Harvard, a private university, also qualifies under Title VI because it receives federal funding.

Starting with University of California v. Bakke in the 1970s and continuing through Grutter v. Bollinger in 2003, the Supreme Court has recognized an exception to the equal protection clause when it comes to college admissions. Previous generations of justices have held that race could be used by colleges and universities in a narrow, limited fashion to promote diversity in campus student bodies. Promoting that diversity, the court held, amounted to a compelling enough interest to justify a deviation from the general rule. Beyond the legal reasons, the justices also recognized its broader value in a multiracial society with a long history of de jure and de facto racial discrimination.

The conservative justices, however, fixed upon part of then-Justice Sandra Day O’Connor’s opinion in Grutter, which seemed to set a quarter-century time limit on affirmative action programs for higher ed. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” she wrote, noting that it had been 25 years since the court’s previous decision allowing it in Bakke. That would theoretically give such policies an expiration date of 2028, the year after applicants in the current college admissions cycle would graduate.

Justice Sonia Sotomayor suggested that the 25-year mark was an “expectation” instead of a “set deadline.” But her colleagues to her right treated it as such. “This distance of time, this 50 years since Bakke, suggests accurately, I think, that achieving diversity and diverse student populations in universities has been difficult,” Justice Amy Coney Barrett asked the solicitor general of North Carolina. “What if it continues to be difficult in another 25 years?” Park replied that O’Connor’s deadline was “helpful” because it encouraged the universities to continue to seek race-neutral alternatives, and that they would continue to strive to do so.

Some of the court’s conservatives, echoing points made by SFFA in their briefs, raised concerns about a period in the 1920s when Harvard discriminated against Jewish applicants. “One thing we know, or we think we know, or we’re told in the briefs at least is that Harvard’s move to a holistic application approach happened in the 1920s because it wanted to impose a quota on Jewish applicants, but it didn’t want to do through the front door, so it used diversity as a subterfuge for racial quotas,” Justice Neil Gorsuch noted when questioning Seth Waxman, who argued for the Ivy League school.

Waxman rejected the premise of that line of attack. “The notion that that bears at all on the way that Harvard’s current admissions process, which uses a 40-person admissions committee that meets and decides each application en banc, in discussion, has any resemblance whatsoever to the racist antisemitic policy of a single Harvard president is insubstantial, as the courts found,” he noted. Indeed, the federal district court that initially heard SFFA’s lawsuit rejected the group’s claim outright that the university had intentionally discriminated against Asian American applicants in recent years.

Nonetheless, Gorsuch persisted. “We have many briefs on this point from Asian American applicants who say there’s an entire industry to help them appear less Asian on their college applications and that they consider elite colleges to have Asian quotas effectively, if not in name,” the justice noted. Waxman pointed to friend of the court briefs from Asian American students and groups in favor of Harvard’s admissions system, as well as to the lower court’s ruling. “The plaintiffs in this case could not, after four years of discovery in which they handpicked applications to view in total, they could not produce a single witness to testify that he or she had been discriminated against,” he added.

Even as they contemplated affirmative action’s demise, the justices tried to sound out the shape of what would come next. A categorical rule against considering race in college admissions, for example, could pose problems for universities if students volunteer their race or ethnicity in essays or other portions of the application process. Chief Justice John Roberts, who famously wrote that the “best way to stop discriminating on the basis of race is to stop discriminating on the basis of race” in a Seattle desegregation case in 2006, asked whether students could cite their racial background in essays discussing where they overcame discrimination. SFFA’s lawyer said he had no issue with that.

Barrett raised concerns about that option, however. “I mean, I guess what I’m concerned about is if it puts a lot of pressure on the essay writing and the holistic review process,” she remarked during the UNC oral arguments. “You could have viewpoint discrimination issues, I would think, depending on how admissions officers treat essays.” The court’s second newest justice, though apparently skeptical of the Bakke/Grutter status quo in general, also recognized that the universities had one major point on their side: The Fourteenth Amendment, as originally understood by its Framers, “established in our precedent that it’s not always illegal to take race-conscious measures.”

Most of the court’s other justices elided the originalist arguments in this case. They came primarily in friend of the court briefs and were raised initially by the court’s more liberal justices, seeing them as a point in affirmative action’s favor. Indeed, SFFA’s lawyer at one point argued that the Freedman’s Bureau, which helped formerly enslaved people after the Civil War, was not a race-conscious government program, which none of the conservative justices embraced as a counterpoint. It is always possible that the Supreme Court chooses a different path before it hands down its decision some time before its term ends next June. But you wouldn’t think so after Monday’s marathon session.