(CNN) — The Supreme Court is poised to say that colleges and universities can no longer take race into consideration in admissions programs, a decision that will likely overturn decades-old precedent and could diminish the number of African American and Hispanic students in higher education.
During a marathon session lasting almost five hours, the justices heard from a total of five lawyers. Three argued on behalf of Harvard and the University of North Carolina. Two others — both former clerks to Justice Clarence Thomas — argued for the conservative group Students for Fair Admissions behind the challenge.
With a 6-3 conservative-liberal majority, the question may be not whether the court will strike down affirmative action, but how far it will rule.
Here are the key takeaways from Monday’s arguments:
‘Slicing the baloney’ and race-neutral alternatives
Central to the cases are whether the schools are trying hard enough to find race-neutral alternatives in order to achieve diversity.
Justices Amy Coney Barrett, Samuel Alito and Chief Justice John Roberts repeatedly pushed lawyers for the schools about their efforts to build a class without taking race directly into consideration. Barrett pursued a line of questioning suggesting that instead of “checking a box,” an applicant could use an essay to demonstrate unique personal characteristics.
Roberts noted that if race may no longer be taken into consideration, there may be an “incentive for the university to, in fact, truly pursue race-neutral alternatives.”
“Suppose that a student is an immigrant from Africa and moves to a rural area in Western North Carolina where the population is overwhelmingly White,” Alito asked in a hypothetical. He wondered if instead of taking race into consideration it would be permissible for the student to write an essay about how he had to deal with “huge cultural differences.”
Patrick Strawbridge, representing Students for Fair Admission, said it would be permissible because the preference is “not being based upon race, but upon cultural experiences.”
The exchange caused a skeptical Justice Elena Kagan, a liberal, to exclaim, “The race is part of the culture and the culture is part of the race, isn’t it? I mean, that’s slicing the baloney awfully thin,” she said.
Conservatives say defenders of affirmative action can’t articulate an endpoint
Another issue that troubled the conservative justices was the notion that in 2003 the court suggested in a decision called Grutter v. Bollinger that the consideration of race as a factor could come to an end by 2028. Fumbling for her reading glasses, Barrett read directly from Grutter: “using racial classifications are so potentially dangerous, however compelling their goals, they can be employed no more broadly.”
“Grutter says this is dangerous and it has to have an endpoint,” Barrett stressed on Monday. She wondered if Grutter was “grossly optimistic” and that in reality, schools would never stop taking race into consideration. She noted that Grutter called race classifications “risky and potentially poisonous.”
When Solicitor General Elizabeth Prelogar said that “eventually” there would be an endpoint when society changed, Roberts seized an opportunity to highlight that Grutter had promised 25 years.
“Grutter gave us a number,” he asked Prelogar. “Do you want to give a number?” he asked.
“I don’t see how you can say that the program will ever end,” Roberts also said.
“Your position is that race matters because it’s necessary for diversity, which is necessary for the sort of education you want,” Roberts said. “It’s not going to stop mattering at some particular point, you’re always going to have to look at race because you say race matters to give us the necessary diversity.”
She declined and then Justice Brett Kavanaugh piled on. “If you don’t have a number, and I understand why it’s difficult. … but if you don’t have something measurable, it’s going to be very hard for this court,” he said.
Clarence Thomas and his former clerks
The two attorneys representing the challengers — Strawbridge, and Cameron T. Norris from the firm Consovoy McCarthy — are both former clerks to Thomas, a long-time critic of affirmative action.
In the Grutter case, Thomas wrote: “The Constitution abhors classifications based on race not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”
His comments Monday suggested nothing had changed in his thinking. In fact, at times he went further than the other conservatives questioning whether diversity itself is even a compelling goal for schools in the first place.
“I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means,” he said Monday. “It seems to mean everything for everyone.”
Such a position would call into question the use of even race-neutral programs. When a lawyer for UNC said that it would enhance the “truth-seeking” function of learning, and “reduce group think,” Thomas, the court’s only Black male justice, was not impressed.
“Well, I guess I don’t put much stock in that because I’ve heard similar arguments in favor of segregation too,” he said.
Liberal Justices Jackson and Kagan on originalism and pipelines
For the first time in history, a Black female justice heard arguments in an affirmative action case at the Supreme Court. Justice Ketanji Brown Jackson had several lines of attack, clearly pushing the notion that she thought diversity was a compelling reason to allow race — as one of many factors — to be part of the decision-making process in higher education.
She pressed Strawbridge about whether his group even has the legal right or standing to be in court, suggesting it lacked the legal injury necessary to bring the challenge because race was only one of many factors considered.
“Why is it that race is doing anything different” than the over 40 other factors the school considers, she asked during the UNC arguments. She said there are no points tallied and no set targets or quota.
“They’re looking at the full person,” Jackson said.
And later in arguments, she wondered whether the schools could run into equal protection arguments if they looked at some factors, and not race.
“What I think you’re saying is that people have to mask their identities when they come into contact with the admissions office just on the basis of their difference,” she said.
She also pursued a line of questioning that she deployed earlier in the term when the court considered Section 2 of the Voting Rights Act. She made an appeal to her conservative colleagues who favor a judicial philosophy called “originalism.” It’s a doctrine that requires the Constitution to be interpreted based on the meaning the founders intended. She argued in the VRA case that the Constitution rejected language that would have insisted on a colorblind society and she suggested that the drafters of the 14th Amendment understood race-conscious measures would be needed to ensure the equality and liberty promised in that amendment.
On Monday Jackson continued along the same lines of questioning. She said if there were any ambiguity in the history, the court should not overturn decades-old precedent.
Kagan agreed and spoke passionately about why diversity is important. She told Strawbridge that it appeared his view was that “it just doesn’t matter if our institutions look like America.” She noted that the schools are the “pipelines” to leadership and if they are not racially diverse, other areas in business or the military would also lack diversity.
“I thought that part of what it meant to be an American and to believe in American pluralism is that actually our institutions, you know, are reflective of who we are, as people in all of our variety.”
Chief Justice John Roberts v. Sonia Sotomayor
Roberts’ conservative bonafides were clearly on display Monday.
He has long been a critic of racial classifications. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he wrote once.
Justice Sonia Sotomayor later used his own words to argue against his position. “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination,” she said in 2014.
The two were on opposite sides again on Monday.
“Our color blindness, whatever that means, because our society is not color blind in its effects — that comes as a high cost not only to UNC but to the states and to the nation as a whole,” she said.
The conservative wing of the court harped on the lack of clarity around when the need for affirmative action would end. Multiple justices asked Ryan Park, the North Carolina solicitor general who is defending the UNC admissions program, to elaborate on how to measure that a school has achieved the diversity goals that would render affirmative action unnecessary.
Sotomayor points to how states that bar affirmative action have fared
Sotomayor returned repeatedly to the statistics coming from the schools in states that have barred affirmative action.
At one point, she raised those trends to push back on conservatives’ invocation of the 25-year timeline the Supreme Court set, in its 2003 ruling sanctioning the use of race in admissions, for affirmative action programs to no longer be necessary.
“Even your adversary said he didn’t see the 25 years as a set deadline. It was an expectation,” Sotomayor said to Park.
“What we know, we have nine states who have tried it and in each of them, as I mentioned earlier, whites have either, white admissions have either, remained the same or increased. And clearly, in some institutions, the numbers for underrepresented groups has fallen dramatically, correct?”
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