WASHINGTON (AP) — A Supreme Court that is the most diverse in history will hear two cases Monday challenging the use of affirmative action in higher education. It’s a topic a number of the justices have already said a lot about.
The cases say that Harvard University and the University of North Carolina — respectively the nation’s oldest private and oldest public college — improperly use race as a factor in admissions, giving preference to Black, Hispanic and Native American students. And the conservative-dominated court is widely expected to rule against the universities.
Three of the court’s six conservatives are on record opposing affirmative action policies while one of the court’s liberals has been a passionate defender. That could make for a particularly interesting argument, especially given the makeup of the court. The group of nine justices includes the first Hispanic justice as well as two justices who are Black — one liberal and one conservative — and who are expected to disagree on the case’s outcome.
What members of the court have said previously about affirmative action and what to watch for during Monday’s arguments:
CHIEF JUSTICE JOHN ROBERTS
In his 17 years leading the court Roberts has repeatedly opposed affirmative action policies and criticized race-based categorizations.
In a 2007 case in which the court rejected efforts to combat segregation in Seattle schools he wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” And in a different case involving race in redistricting he memorably wrote: “It is a sordid business, this divvying us up by race.”
The last time the court considered an affirmative action case, in 2015, Roberts asked about the benefits of diversity this way during arguments: “What unique perspective does a minority student bring to a physics class?”
CLARENCE THOMAS
Thomas has a long record of opposition to affirmative action programs, and his views relate to is own experience. The court’s second Black justice is also its most outspoken opponent of affirmative action and has said that his law degree from Yale was “tainted” because people assumed was admitted to the school because of affirmative action.
In 2003, Thomas dissented when the court, by a 5-4 vote, backed the use of race in admissions. He wrote in that case, Grutter v. Bollinger: “I believe Blacks can achieve in every avenue of American life without the meddling of university administrators.” Every time “the government places citizens on racial registers and makes relevant to the provision of burdens or benefits, it demeans us all.”
SAMUEL ALITO
Alito has made no secret of his disagreement with the court’s affirmative action rulings. In 2016 when the court upheld a University of Texas admissions program that takes account of race — a ruling surprising some observers — Alito wrote a dissent that was more than twice as long as the majority opinion. He also summarized his dissent out loud in court, a rare step justices take as a way of emphasizing their displeasure.
NEIL GORSUCH, BRETT KAVANAUGH, AMY CONEY BARRETT
The court’s remaining three conservatives, all appointed by President Donald Trump, have no track record on affirmative action. Of the three, however, Kavanaugh has underscored his commitment to diversity in his own hiring practices. During his Senate confirmation hearing he noted that a majority of the young lawyers he’s hired as law clerks have been women and more than a quarter have been minorities.
Still, at the time, groups pointed to a 1999 Wall Street Journal article Kavanaugh wrote as evidence he would oppose affirmative action. The article quoted conservative Justice Antonin Scalia to say that it’s a fundamental constitutional principle that “in the eyes of government, we are just one race here. It is American.”
SONIA SOTOMAYOR
The liberal Sotomayor has repeatedly and proudly said that she’s a “product of affirmative action.” The court’s first Hispanic justice grew up in the Bronx, New York, and attended Princeton on a full scholarship. She excelled and went on to Yale Law School. Affirmative action was a “door opener that changed the course of my life,” she has said.
On the court, Sotomayor has defended affirmative action, most strongly perhaps in a 2014 case in which her colleagues upheld a Michigan affirmative action ban passed in the wake of the court’s Grutter decision. “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 wrote, pointedly paraphrasing Roberts.
ELENA KAGAN
Before becoming a Supreme Court justice, Kagan was dean of Harvard Law School and President Barack Obama’s top Supreme Court lawyer as solicitor general. She sat out earlier affirmative action cases at the court, likely because of her involvement in the cases while in government. The Obama administration took positions supporting affirmative action.
KETANJI BROWN JACKSON
Jackson, who earlier this year became the first Black woman to sit on the Supreme Court, could have a lot to say on the topic of affirmative action. While the group challenging Harvard’s and UNC’s policies argues that the Constitution is “colorblind,” Jackson said earlier this month in a different case that she believes constitutional amendments made following the Civil War were adopted in a race-conscious way.
Jackson will only participate in the UNC case. During her confirmation hearings earlier this year the liberal justice pledged to sit out the Harvard case because she was a member of the school’s board.
SANDRA DAY O’CONNOR
Yes, the court’s first female justice retired from the court nearly two decades ago. But her words are likely to echo at Monday’s arguments since she’s the author of the Grutter v. Bollinger opinion the justices are being asked to overturn. O’Connor closed that 2003 opinion in part by saying that affirmative action’s days might be numbered. She wrote: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
If the court does bar race-conscious admissions when it decides the case by the middle of 2023, it would shave five years off her timeline.
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Personal opinions are not what the supreme court is consider. Only the law I.A.W. the U.S. Constitution!
Affirmative action’s are discrimination against the more qualified. Qualifications should be the only thig determining any outcome. NOT race, gender, religion or national origin.
This destructive immoral, dishonest, woke, racist Democrat Party has made everything about their gender, sexual perversions and woke opinions.
If affirmation action were not considered that half of the black population would be as unemployed as the other half. Qualifications for the job should be the only requirement, not race or sex.
TO the leftists, QUALIFICATIONS DO NOT matter. Just what “Special group” you belong to..
Like all liberal initiatives eventually do, “Affirmative Action” has gotten out of hand to the point of being completely nonsensical. We are now being abused by Critical Race Theory, which is the natural follow up to Affirmative Action, but much much more anti-social and anti-constitution. The good news is that it seems many minorities are becoming embarrassed by the leftist agenda, and are leaning toward conservatism. I hope this manifests itself next week.
OR their war on poverty, or their war on drugs.. HELL< i can't name a SINGLE initiative they came up with, THAT HAS EVER ACTUALLY DONE WHAT IT WAS said to do.
O’Connor was correct at the time of her decision; Since the Obama Era of Race Baiting and Entitlement, there has been a resurgence of pandering on an Olympic scale.
Affirmative was, and is–racist. When I volunteer at the annual school supply distribution for needy families, in recent years I’ve seen more and more “needy” African American recipients driving expensive late model SUVs (mine’s 13years old), and holding thousand dollar iPhones. Sadly, graft and pandering have reached new levels in my (Blue) home town.
I always CHOKE UP seeing crud like that. HOW the hell can someone claim to be needy, WHEN DRIVING A NEW 30 thousand Dollar vehicle, and sporting NAME BRAND PHONES AND CLOTHES?!?!?
What those of the same race, sex, preferred gender identity, and other similar preferences will be what I vote for. Constitution, we don’t need no stinking constitution to use as the basis for a decision.
Please note: I seriously found it very difficult to use the word “stinking” as I love and honor our constitution but that is more or less the best way to make the statement.
Students should be admitted to schools based on merit and only merit. If they have not achieved in lower schools they will not be able to achieve at university either.
I think of doctors most often when I think of affirmative action in education. Would you want your doctor to be someone who got the last place in medical school because of his skin color or would you want the brilliant Asian student who missed out on medical school so someone unqualified academically could have that place?
There are black students qualified on merit but doubt has been cast. If it wasn’t for our racist government we could trust that all students are qualified or they wouldn’t be there.
AND MErit here, SHOULD ONLY Be their grades/test scores. I personally HATE that colleges, spend so much time on the “concept of total person”, taking your community involvement, athletics and all sorts of other balloney into account..
First forced busing stated over 40 years ago mean same teacher ,same school and same textbook. If everything is the same ,then why do you need affirmative action ??
Lower standards means less Qualified gets in. But a lot of jobs now give you a test and if you can’t pass a basic math and English test ,you don’t get hired. I think you will see more and more companies do that.
College standards for whites and Asians should be the standards for all.
Can we have affirmative action for poor white kids, too??