With the retirement of one of its justices on the horizon, the Supreme Court is preparing to hear a case that could decide the future of affirmative action in higher education.
The Supreme Court agreed in January to take up a pair of lawsuits brought by anti-affirmative action group Students for Fair Admissions against Harvard and the University of North Carolina. The suits allege that the schools discriminate against Asian American applications through their race-conscious admissions practices and ask the court to overturn precedent endorsing affirmative action in the 2003 case Grutter v. Bollinger.
The suits will mark the first time the court will consider an affirmative action case since the addition of Justices Brett M. Kavanaugh and Amy Coney Barrett expanded the court to its 6-3 conservative majority.
To understand where the court may stand on the issue, The Crimson profiled each of the eight justices who will remain next term, as well as President Joe Biden’s nominee Ketanji Brown Jackson ’92. The profiles examine their prior rulings, amicus curiae briefs, and other legal documents.
Since ascending to the court in 2005, Chief Justice John G. Roberts ’76 has ruled four times on the use of race in either high school or college admissions, each time making clear his opposition to affirmative action.
Two years into his tenure on the Supreme Court, Roberts wrote the majority opinion in a case shooting down the practices of a Seattle high school, which set racial quotas in its admission process. He acknowledged the value in “remedying the effects of past intentional discrimination” but asserted that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”
In the 2014 case Schuette v. Coalition to Defend Affirmative Action, the Supreme Court ruled on the constitutionality of an amendment to the Michigan state constitution that barred affirmative action in public institutions.
In a concurring opinion, Roberts wrote that “racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good.”
A year earlier in the case Fisher v. University of Texas at Austin, Abigail N. Fisher sued the University of Texas at Austin for its use of race in admissions. Roberts joined a seven-justice majority in ruling that race cannot be considered unless the school’s admissions practices are “narrowly tailored to obtain the educational benefits of diversity.”
When Fisher returned to the court two years later in 2015, Roberts disagreed with the majority opinion, which upheld the university’s consideration of race in admissions.
The most senior justice on the Court, Associate Justice Clarence Thomas has ruled on the use of race in college admissions seven times since his tenure began in 1991.
When Grutter v. Bollinger reached the Supreme Court in 2003, Thomas dissented from the court’s opinion, which declared the affirmative action policies utilized by the University of Michigan’s law school constitutional.
In Gratz v. Bollinger, a similar case concerning the University of Michigan’s undergraduate admissions, Thomas joined the majority opinion striking down the school’s point-based practices, which automatically awarded extra points to students from racial minorities.
“I would hold that a State’s use of racial discrimination in higher education admissions is categorically prohibited by the Equal Protection Clause,” Thomas wrote in a concurring opinion.
He reiterated his disapproval of affirmative action in higher education in several subsequent cases, including Schuette and both Fisher lawsuits against the University of Texas.
“As should be obvious, there is nothing ‘pressing’ or ‘necessary’ about obtaining whatever educational benefits may flow from racial diversity,” Thomas wrote in a concurring opinion in the first Fisher case.
Associate Justice Samuel A. Alito Jr. previously upheld race-conscious admissions in the 2007 Seattle high school admissions case and defended the rights of Michigan voters to alter their state constitution to ban the use of race or sex-based preferential treatment in university admissions.
In the first Fisher case, Alito joined the majority opinion in ruling that schools may implement affirmative action practices in their admissions so long as they meet strict scrutiny standards. When the court examined the University of Texas’s admissions in the second Fisher lawsuit, he was one of the three justices to rule in favor of the plaintiff.
“When UT decided to adopt its race-conscious plan, it had every reason to know that its plan would have to satisfy strict scrutiny and that this meant that it would be its burden to show that the plan was narrowly tailored to serve compelling interests,” Alito wrote in a dissent. “UT has failed to make that showing.”
President Barack Obama’s first Supreme Court nominee ascended to the high court in 2009 and has since ruled in Schuette and both Fisher cases. A staunch defender of the constitutionality of affirmative action, Sotomayor was part of the seven-justice majority that ruled in favor of the University of Texas in 2013.
“[R]ace-sensitive admissions policies further a compelling state interest in achieving a diverse student body precisely because they increase minority enrollment, which necessarily benefits minority groups,” Sotomayor wrote in a dissent to the court’s Schuette ruling.
When the second Fisher reached the Supreme Court, Sotomayor was part of the majority that voted to preserve the use of race in college admissions.
Since her tenure on the court began in 2010, Associate Justice Elena Kagan has recused herself from all three of the affirmative action cases that have reached the Supreme Court, including from both Fisher cases due to her previous involvement in their litigation when she served as United States Solicitor General from 2009-2010.
But prior to joining the court, Kagan defended race-conscious admissions practices.
As solicitor general, Kagan approved the filing of an amicus curiae brief on behalf of the Department of Justice in 2010 that supported the University of Texas’ affirmative action policies. The brief argued that the school showed sufficiently compelling interest in cultivating a diverse student body.
Decades earlier, while serving as a policy adviser to President Bill Clinton, Kagan and her co-author Bruce Reed wrote in a memo to the president that there is “still a need for narrowly tailored affirmative action programs, and certain other kinds of targeted initiatives.”
While Associate Justice Neil M. Gorsuch has said little on affirmative action directly, he has displayed a strict interpretation of the Constitution. Penning the majority opinion in the case Bostock v. Clayton County, Gorsuch wrote that “only the words on the page constitute the law adopted by Congress and approved by the President.”
Harvard Law Professor Jeannie C. Suk Gersen wrote in a 2020 New Yorker article that Gorsuch’s apparent textualist viewpoint does not bode well for the future of affirmative action.
But as Gorsuch has yet to weigh in on an affirmative action case, his perspective on the issue remains unclear.
Appointed by former President Donald Trump in 2018, Kavanaugh has also not yet ruled on affirmative action. His lack of rulings on the matter, however, have led legal experts to speculate about how he will vote in the Harvard admissions case.
When Grutter v. Bollinger and Gratz v. Bollinger reached the Supreme Court in 2003, Kavanaugh – serving as associate counsel – coordinated the White House’s opposition to the University of Michigan’s use of affirmative action, per the request of then-President George W. Bush.
During Kavanaugh’s confirmation process, the media reported on a newspaper column he wrote for the Wall Street Journal in 1999. In the column, he predicted that the Supreme Court would one day rule that “in the eyes of the government, we are just one race.”
Appointed in late 2020, Barrett has also not ruled on affirmative action throughout her career. Experts have attempted to draw clues on her stance from her general judicial philosophy.
Peter F. Lake ’81, a professor at Stetson University College of Law, told The Crimson in late 2020 that he thinks Barrett’s originalist views clash with affirmative action precedent.
“If she's a true originalist, she's going to have to contend with the fact that the level of scrutiny that American higher education now experiences in the hands of the federal government is anything but original to the U.S. Constitution,” Lake said.
When the Supreme Court agreed to hear Students for Fair Admissions’ lawsuit in January, Harvard Law School professor emeritus Alan M. Dershowitz said that Barrett may cast the deciding vote.
Nominated last month to replace outgoing justice Stephen G. Breyer, Jackson did not opine on affirmative action during her tenure on the D.C. Circuit Court of Appeals.
Outside of the courtroom, she has also kept her views on the issue concealed. While running for a seat on the Harvard Board of Overseers, all other candidates stated their support for Harvard’s use of affirmative action. Jackson refused to provide her stance, citing her position as a federal judge who could potentially rule on an affirmative action case.
But Coalition for a Diverse Harvard, a pro-affirmative action group of nearly 700 alumni, endorsed Jackson’s ticket for the Board.
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