The most diverse Supreme Court ever confronts affirmative action
The Washington Post October 29, 2022
WASHINGTON — The most diverse group of Supreme Court justices in history will gather Monday to confront the issue that has vexed and deeply divided past courts: whether affirmative action in college admissions recognizes and nourishes a multicultural nation or impermissibly divides Americans by race.
The authority of college administrators to use race in a limited way to build a diverse student body has barely survived previous challenges. But even a defender of such policies, Justice Sandra Day O'Connor, wrote in 2003 that racial preferences were not likely to be needed in 25 years. And a more dominant conservative majority is in place now.
It will be the first review of past decisions by a Supreme Court on which White men do not make up the majority. The body has undergone an almost complete turnover since O'Connor's prediction, and includes justices who say affirmative action programs directly shaped their lives.
The court now has two Black members - and they seem to have opposite views of whether race-based policies are authorized by the Constitution. The court's most senior member, Justice Clarence Thomas, is an outspoken opponent of affirmative action: "racial paternalism . . . as poisonous and pernicious as any other form of discrimination," he has written.
Ketanji Brown Jackson, the court's newest member and its first Black female justice, staked out her position on just her second day on the bench: there is no reason to believe the Constitution forbids race-conscious policies.
Sonia Sotomayor, the court's first Latina justice, is the boldest defender of what she prefers to call "race-sensitive" admission policies; she has offered herself as the "perfect affirmative action child" - one who would not have been transported from Bronx housing projects to the Ivy League without a boost, but excelled as a top student once she got there.
Then there is Chief Justice John G. Roberts Jr., who usually is the conservative least likely to champion dramatic change in the court's precedents. But his entire legal career is anchored by a deep skepticism of what he has called the "sordid business" of dividing Americans by race.
Add to the mix this: Five of the nine justices have yet to cast a vote on affirmative action in a Supreme Court challenge.
If there is a wild card among them, it might be conservative Justice Brett M. Kavanaugh, the member many consider key to the court's direction.
Kavanaugh's record as an advocate and judge suggest an aversion to racial classifications. But he has also displayed an aggressive pursuit of diversity in the clerks he has hired, with repeated outreach to Black student organizations at the nation's elite law schools. His first group of law clerks at the Supreme Court was also the first to be all-female.
The court on Monday will be reviewing the admission policies at Harvard and the University of North Carolina, cases brought by longtime affirmative action opponent Edward Blum and his Students for Fair Admissions. After extensive trials, lower courts found each university complied with the Supreme Court's precedents about considering race as only one factor in building diverse student bodies.
Given those rulings - and just six years after the Supreme Court approved a similar race-conscious admissions program at the University of Texas - analysts say it is seems likely the right wing of the court accepted the new cases to redefine the law about race, rather than simply to affirm the lower courts.
The Supreme Court "has grappled with this question of affirmative action in higher education and the permissible uses of race for many years, but the court is more conservative now than it has been in any of those decades," said Washington lawyer Roman Martinez, a frequent Supreme Court practitioner. "If you were just trying to count noses, I think you would think there are more votes to be skeptical of these programs now than ever before."
Opponents on the court are sure to be led by Thomas, who was a dissenter in 2003 when the court upheld the limited use of race in Grutter v. Bollinger. In that opinion, O'Connor agreed with the University of Michigan Law School that its admission policies reflected a compelling interest in ensuring a "critical mass" of minority students. The Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body," she wrote.
Thomas's opposition has been both personal and constitutional. "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," he wrote in dissent.
The justice contends he adheres to a "colorblind" view of the Constitution, and that only government measures that remedy specific past discrimination are allowed. But Brooklyn College political science professor Corey Robin, who wrote "The Enigma of Clarence Thomas," says Thomas is still "a very race conscious thinker."
"Thomas has always seen himself, from the very beginning, as someone who is trying to reconstruct how black people thought about race, first and foremost," Robin said.
When Thomas writes about affirmative action, he "almost never focuses, or talks about, white victims. In Thomas's mind, the real victims of affirmative action are black people," Robin continued. "I think he's quite sincere in this belief that affirmative action is a kind of continuation of Jim Crow and old white supremacy."
Thomas has written dramatically about how racial preferences have affected his own life. "A law degree from Yale meant one thing for white graduates and another for blacks," he says in his memoir My Grandfather's Son. After graduation, "as a symbol of my disillusionment, I peeled a fifteen-cent price sticker off a package of cigars and stuck it on the frame of my law degree to remind myself of the mistake I'd made by going to Yale."
Thomas's focus on Black people as the victims of racial preferences have not convinced traditional civil rights activists and heroes. "He had all the advantages of affirmative action and went against it," Rosa Parks said of Thomas in 1996.
Jackson, the newest member of the court, described a similar disconnect when she first met Thomas. As a law clerk to Justice Stephen G. Breyer in 1999-2000, she and other clerks were invited to lunch with Thomas, as part of the court's tradition that each clerk meet each justice.
Jackson described the experience to journalists Kevin Merida and Michael Fletcher for their 2007 book Supreme Discomfort: The Divided Soul of Clarence Thomas.
Thomas "spoke the language," Jackson said, meaning he reminded her of the Black men she knew, Merida and Fletcher wrote.
"But I just sat there the whole time thinking, 'I don't understand you. You sound like my parents. You sound like people I grew up with.' But the lessons he tended to draw from the experiences of the segregated South seemed to be different than those of everybody I know," the book quotes Jackson as saying.
Jackson, nominated by President Biden to replace Breyer, quickly made clear her own views on race-based policies, saying in an elections case from Alabama earlier this month that there was no reason to believe the equal protection clause of the 14th Amendment meant the Constitution must be colorblind.
"I don't think we can assume that just because race is taken into account that that necessarily creates an equal protection problem," Jackson said. "I understood that we looked at the history and traditions of the Constitution, at what the framers and the founders thought about. And when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the 14th Amendment, the 15th Amendment, in a race conscious way."
She added: "the entire point of the [14th] Amendment was to secure rights of the freed former slaves."
Sotomayor, who joined the court in 2009, had made similar defenses.
"Constitutionally permissible race-sensitive admissions policies can both serve the compelling interest of obtaining the educational benefits that flow from a diverse student body, and inure to the benefit of racial minorities," she wrote in a dissent to the court's finding that Michigan voters can forbid the university system from considering race in admission decisions. "There is nothing mutually exclusive about the two."
Moreover, Sotomayor wrote about what it means to be a minority in America.
"Race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away," she wrote. "Race matters to a young man's view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman's sense of self when she states her hometown, and then is pressed, "No, where are you really from?" regardless of how many generations her family has been in the country . . . Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: 'I do not belong here.' "
On that issue, Sotomayor has sparred with Roberts.
He is one of the biggest proponents of the colorblind view, and said it is the lesson of the court's landmark 1954 decision ending public school segregation, Brown v. Board of Education. The chief justice dissented when the court upheld race-conscious admissions policies at the University of Texas in 2016, and wrote the decision striking down voluntary desegregation plans in Seattle and Louisville in 2007. He said using race in student assignments was not permitted, even if school officials thought they had a noble reason.
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," was his oft-quoted line.
Skepticism of race-conscious policies has been a through-line in Roberts's career, from his time as a young lawyer in the Reagan administration to his consideration as the chief justice of the requirements of the Voting Rights Act, intended to remedy past discrimination.
A key question is whether those views will outweigh Roberts's tendency to try to find a middle ground on polarizing legal issues. The challengers to Harvard and UNC urge the court not just to rewrite its rules on race but to overturn O'Connor's ruling in Grutter v. Bollinger.
Roberts's tendency for compromise was evident last term when he declined to join his conservative colleagues in overturning Roe v. Wade. Options in the affirmative action cases include bypassing the constitutional questions and finding that federal law prohibits the consideration of race - which would leave Congress free to make a change - or to simply find the policies of Harvard and UNC violate the court's precedents.
But Roberts's past decisions might indicate this is an issue on which he would not seek a conciliatory path. "This case could challenge the chief's strong aversion to overturning precedent," said Martinez, who is a former Roberts clerk. He "might be leading the court this year on this issue."
Since lower courts affirmed the policies of UNC and Harvard, it seems likely that support for taking up the cases came from one or more of President Trump's nominees to the court: Justices Neil M. Gorsuch, Amy Coney Barrett and Kavanaugh.
Kavanaugh, who joined the court in 2018, has been in the majority of opinions more than any other justice over the past two terms. His cases as an advocate and decisions as an appeals court judge suggest an aversion to racial classifications.
But, even when approving a South Carolina voter ID law that challengers said would have a disproportionate effect on Black voters, Kavanaugh wrote that "the long march for equality for African-Americans is not finished."
In addition, Kavanaugh has placed an importance on hiring minorities, who are underrepresented among law clerks on the prestigious federal appeals courts. During his time on the U.S. Court of Appeals for the D.C. Circuit, 13 of the 48 clerks he hired were minorities. Nine of them went on to clerk at the Supreme Court, according to statistics compiled by his former clerks.
Only three of his 20 clerks at the Supreme Court have been White men.
Justin Driver, a constitutional law professor at Yale who was a law clerk to O'Connor and Breyer, said the court has upheld race-conscious policies in the past through "gritted teeth."
"Affirmative action has repeatedly been left for dead and a series of rather improbable Republican-appointed justices have preserved it," he said. "We will see whether history repeats itself."
The Washington Post's Ann E. Marimow contributed to this report.