The Supreme Court has reviewed affirmative action multiple times, and repeatedly upheld race-conscious admissions. Despite the weight of such precedents, the right-wing justices did little to disguise their dismissal, at times disdain, of the arguments before them.
On Monday, the Court heard a double-barreled oral argument schedule. The first challenge to affirmative action was against the University of North Carolina at Chapel Hill, and the second was against Harvard University. Justice Ketanji Brown Jackson recused herself from the second due to her ties to the school.
While the cases are separate, they’re similar. At heart, the schools argue that they use a mix of factors — race as one of many — to get a holistic picture of their applicants, in line with what the Supreme Court has decided is permissible. The petitioners are asking that the court overturn its prior rulings allowing race-conscious admissions, a result that could ripple into other spheres, like employment.
The conservative justices sounded unperturbed by the prospect of nixing so much precedent, often looking to steer away from the facts of the case into hypotheticals or to bring up the kind of talking points that have a home on Fox News.
In one exchange, Justice Samuel Alito seemed to take a shot at Sen. Elizabeth Warren (D-MA) for a scandal involving her claim of Native American ancestry. He was grilling North Carolina Solicitor General Ryan Park on what percentage of a student’s heritage would be enough to consider that student Native American.
“One great-grandparent?” he asked.
Park started to explain that such a thing would be self-reported on the application, but Alito cut across him.
“One great-great-grandparent? Are you gonna make me continue to go on?” he asked.
“It’s family lore that we have an ancestor that was an American Indian,” he suggested, a seeming shot at Warren who had previously identified herself as such, and had to apologize during her run for president in 2019. “I identify as an American Indian because I’ve always been told that some ancestor back in the old days was an American Indian.”
At other points, Justice Clarence Thomas sounded dismissive of the idea that diversity on campuses is a good and important thing at all.
“You still haven’t given me the educational benefits,” he said to Park. “I didn’t go to racially diverse schools, but there were educational benefits. I’d like you to tell me expressly — when a parent sends a kid to college, they don’t necessarily send them there to have fun or feel good or anything like that. They send them there to learn physics or chemistry or whatever they’re studying.”
Park explained that diverse groups perform at a higher level, and that diversity in the student body reduces groupthink.
“I guess I don’t put much stock in that because I’ve heard similar arguments in favor of segregation too,” Thomas responded.
A common rebuttal from justices including Brett Kavanaugh centered on whether the schools were being attentive enough to religious diversity in their ranks, in keeping with a Court that has prioritized cases involving alleged religious persecution of Christians.
While questioning the attorney for Harvard, Justice Neil Gorsuch seemed to say that the University is currently racially discriminating.
“Harvard could tomorrow do without federal funds and continue to discriminate on the basis of race however it pleased,” he said. “I’m sure that would be a hardship.”
Many court watchers feared an adverse outcome as soon as the Court took the cases up, as it had often and recently addressed their central questions. Much of Monday’s oral arguments centered on “race-neutral” alternatives to affirmative action, as if the current system’s impending demise is a foregone conclusion.
Some of the liberal justices took it upon themselves to spell out the real-world result of losing race-conscious admissions: namely, that universities would hemorrhage minority students.
“What I’m saying is your brief — and this is very explicit in your brief — it just doesn’t matter if our institutions look like America,” Justice Elena Kagan said to the lawyer representing the challengers to UNC. “I guess what I’m asking you is: doesn’t it? These are the pipelines to leadership in our society.”
Jackson pushed it a step further, suggesting that preventing some students from identifying themselves on their application materials could present its own 14th Amendment issue.
“Now we’re entertaining a rule in which some people can say the things they want about who they are and have that valued in the system, but other people are not going to be able to because they won’t be able to reveal that they’re Latina or African American or whatever,” she said. “And I’m worried that that creates an inequity in the system.”