Justices appear skeptical of affirmative action during oral arguments (plus the Elizabeth Warren question)

Justices appear skeptical of affirmative action during oral arguments (plus the Elizabeth Warren question)
Charles Dharapak

Oral arguments in two affirmative action cases are taking place today at the Supreme Court. The NY Times is reporting that it sounds as if conservatives on the court are skeptical of the policy.


The race-conscious admissions program at the University of North Carolina seemed to be in peril at the Supreme Court on Monday. By the end of an unusually long and heated argument, a majority of the justices appeared ready to reconsider decades of precedents and to rule that the program was unlawful.

Depending on its scope, a ruling against U.N.C. could doom affirmative action at public colleges and universities around the nation and perhaps at private ones, too. A second argument on Monday, concerning admissions policies at Harvard, a private institution, will help clarify the approach the court is most likely to take.

The AP has more on the predictable divide evident in the questioning.

The court’s six conservative justices all expressed doubts about the practice, while the three liberals defended the programs, which are similar to those used by many other private and public universities…

Justice Clarence Thomas, the court’s second Black justice who has a long record of opposition to affirmative action programs, noted he didn’t go to racially diverse schools. “I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means,” the conservative justice said at one point. At another, he challenged defenders: “Tell me what the educational benefits are.”

Justice Amy Coney Barrett, another conservative, pointed to one of the court’s previous affirmative action cases and said it anticipated a halt to its use in declaring that it was “dangerous” and had to have an end point. When, she asked, is that end point?

Justice Samuel Alito likened affirmative action to a race in which a minority applicant gets to “start five yards closer to the finish line.” But liberal Justice Sonia Sotomayor, the court’s first Hispanic justice, rejected that comparison saying what universities are doing is looking at students as a whole.


Chief Justice Roberts is apparently also skeptical of affirmative action and asked when it would ever end.

Several of the court’s conservatives noted that the 19-year-old precedent that permits the use of race in admissions had warned that such policies shouldn’t be needed forever. How, the court’s conservative justices asked, will supporters of the policies determine whether the goals of affirmative action had ever been reached?

“I don’t see how you can say that the program will ever end,” said Chief Justice John Roberts.

Also, he said:

Yes, race can sometimes be determinative of who is admitted, Harvard’s lawyer concedes, just as Harvard may admit an oboe player if its orchestra needs one. “We did not fight a civil war about oboe players,” the chief justice shoots back.

Many of the Justices were asking hypothetical questions like this one from Alito which appeared to reference a certain Senator who once told Harvard on an official EEOC form that she was Native American.

Alito asked North Carolina Solicitor General Ryan Park — who is defending affirmative action policies at the University of North Carolina — what is preventing students from claiming heritage they don’t have.

“It’s family lore that we have an ancestor who was an American Indian,” Alito offered.

Park agreed that in that instance, it would not make sense for a student to say they are of American Indian heritage.

Alito replied: “I identify as an American Indian because I’ve always been told that some ancestor back in the old days was an American Indian.”

Park conceded, agreeing that it is unlikely that the student was telling the truth.


I haven’t listened to the several hours of argument yet but from what I have heard it seems the liberal Justices are arguing that ending affirmative action would harm Black and Latino representation.

Justice Elena Kagan said she was worried about “a precipitous decline in minority admissions” were the court to rule against affirmative action in higher education. “These are the pipelines to leadership in our society,” she said of elite universities.

Harvard put out this tweet during the arguments claiming the same thing.

Simultaneously, the liberal Justices also seem to be arguing that affirmative action rarely makes a difference or that the difference is so slight that it’s not clear anyone has sufficient grounds to claim injury. “I’ve been struggling to understand how race is actually factoring into the admissions process here and whether there’s any actual addressable injury that arises.” You’ll have to click that link to hear the comments. As a non-attorney, I don’t follow how carving up a zero-sum pie could both create no injury while it exists but cause harm to certain minorities if it’s removed.


There does seem to be agreement that affirmative action matters much less at the majority of colleges which aren’t as highly competitive as Harvard.

Most colleges do not use affirmative action when they decide which students to accept. But at very competitive schools, where race-conscious admissions are more common, evidence suggests that banning the practice could sap diversity on campus.

But if race-conscious admissions were banned, most schools would not have to change their existing practices. According to the most recent State of College Admission report in 2019 from the National Association for College Admission Counseling, 58 percent of four-year colleges said that race and ethnicity had no influence on their admissions decisions. Only about 7 percent said the influence of race was considerable.

“For the vast majority of institutions that are open access, this isn’t going to really have a huge effect on how they admit students,” Dr. Del Pilar said. But he added that a ban on affirmative action could change how students of color feel about pursuing higher education. “What is going to be the chilling effect,” he asked, “of a decision that makes students feel like they’re not welcome on these campuses?”

A decision is expected in the early spring. I guess we’ll have to wait and see if this one leaks.


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Jazz Shaw 12:31 PM on December 07, 2023