The Supreme Court’s conservative justices on Monday suggested they would vote to overturn the legal basis for affirmative action in college admissions.
The High Court heard oral arguments in two cases brought by Students for Fair Admissions against Harvard University and the University of North Carolina. The plaintiffs argue the universities are discriminating against Asian and white applicants, while attorneys representing the schools have defended the race-conscious admissions policies as lawful and necessary to achieve racial diversity. Questions from the Court’s conservative justices—many of whom have dissented against past affirmative action cases—indicated they were sympathetic to the plaintiffs’ argument.
Justice Clarence Thomas, Justice Samuel Alito, and Chief Justice John Roberts all dissented in a 2016 case before the Supreme Court that allowed for race-based admissions at the University of Texas. On Monday, Thomas and Alito reserved their toughest questioning for attorneys who said such admissions practices improve educational outcomes.
“I guess I don’t put much stock in that, because I’ve heard similar arguments for segregation,” Thomas said in response. He also took issue with attorneys who argued the practices promote diversity.
“I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,” Thomas said. “It seems to mean everything for everyone.”
Alito also questioned the notion and asked how the universities could favor “underrepresented minority” candidates for admission without “disadvantaging” other students.
The comments could signal the Court’s willingness to continue overturning long-standing legal precedents. Mark Smith, a senior fellow in law and public policy at the Federalist Society, notes that “the Court has already done this by overruling Roe v. Wade in Dobbs and in confirming that lower courts must enforce the Second Amendment right to keep and bear arms.” The admissions cases would have broad implications since they concern both a private institution and a public university.
The cases implicitly and explicitly call on the Court to revisit past decisions. Students for Fair Admissions asked the Court to overturn a 2003 ruling in Grutter v. Bollinger, which held that institutions of higher education may use race as a factor in admissions. At the time, Thomas remarked the decision would worsen racial equality.
“When blacks take positions in the highest places of government, industry, or academia,” Thomas wrote in a dissenting opinion, “it is an open question today whether their skin color played a part in their advancement.”
In her majority opinion, Justice Sandra Day O’Connor had implied the decision was in some sense provisional. She wrote the “Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Justices Brett Kavanaugh and Amy Coney Barrett touched on this in questions put to one of the lawyers defending the University of North Carolina.
“These racial classifications are potentially dangerous and must have a logical end point,” Kavanaugh said.
“When is your sunset?” Barrett asked. “How do you know when you’re done?”
Justice Neil Gorsuch said the race-conscious policies were difficult to distinguish from an outright racial quota, which the Court outlawed in the 1978 case Regents of the University of California v. Bakke. The manner of admissions, he said, was reminiscent of similar “holistic admissions approaches” that Harvard “used as cover for quotas for Jewish persons” during the 1920s.
“I’m struggling still to understand how you distinguish between what this Court has said is impermissible, a quota, with what you argue should be permissible going forward, which is diversity,” Gorsuch said in an exchange with North Carolina solicitor general Ryan Park. “How can you do diversity without taking account of numbers?”
The remarks take aim at the Court’s decision in Bakke to permit certain racial preferences in higher education even as it outlawed quotas.
Students for Fair Admissions initially filed lawsuits against the universities in 2014, saying their policies violated the Constitution and Civil Rights Act. Harvard and the University of North Carolina claim race is used as an admissions criterion along with other factors, including grade point average, socioeconomic status, and extracurricular activities. The Supreme Court took up the pair of cases in January.
In a revealing exchange between Roberts and Seth Waxman, a lawyer for Harvard, the chief justice pressed the attorney on the unique issue of racial discrimination in the nation’s history. Waxman had argued factoring race into admissions was as significant “as being an oboe player in a year in which the Harvard Radcliffe Orchestra needs an oboe player will be the tip.”
“We did not fight a civil war about oboe players,” Roberts replied. “We did fight a civil war to eliminate racial discrimination. And that’s why it’s a matter of considerable concern.”