Last Friday, the Supreme Court disaggregated the two discriminatory admissions cases on its docket next year.
LIF readers may remember that, during her confirmation hearings, Judge (now Justice) Ketanji Brown Jackson said she planned not to participate in the pending case of Students for Fair Admissions v. Harvard. Under Senator Cruz’s questioning, then-Judge Jackson indicated she would recuse herself because she’s a member of the Harvard Board of Overseers, and would have a conflict of interest in deciding the case.
As strange as it may seem, Supreme Court justices are not required to follow ethics rules that bind other judges, although they usually recuse themselves for conflicts of interest.
Since January 24, 2022, the Harvard case had been consolidated with another case involving the University of North Carolina. Both cases involve challenges to the legality of what used to be called reverse discrimination (now usually called affirmative action) in university admission policies. The UNC case concerns use of discriminatory admissions by a government actor; the Harvard case, by a private school. Both lawsuits were brought by the same plaintiff, an Asian-American advocacy organization. Typically, Asian-Americans have to score significantly higher on admissions tests compared to blacks, Hispanics, and whites in order to be admitted to college. The cases were briefed together; that is, most of the briefs concern both cases.
So why were the cases decoupled? Presumably, to allow Justice Jackson to participate in the UNC case. (The order decoupling the cases was careful to note that “Justice Jackson took no part in the consideration of this order.”)
The addition of Justice Jackson doesn’t affect the number of justices needed to change the outcome. When the Court is equally divided, the lower court decision is affirmed. Plaintiffs lost the case below, so they would need five votes to overrule the lower court whether eight or nine justices hear the case.
What Justice Jackson’s presence on the panel does is remove a potential argument against the high court’s credibility, by including a voice likely to side with the other liberal justices. In that, it’s consistent with Chief Justice Roberts’ desperate efforts to protect the Court’s institutional legitimacy. That’s not to say that Jackson’s presence will guarantee legitimacy.
Gone are the days when opponents of Court decisions try to persuade by countering the Court’s legal analysis with counter-arguments. Instead, they simply assert that its decisions are illegitimate and that the Court lacks institutional credibility. Although both sides have been guilty, this has been a particular hallmark of leftist tactics.
For example, before the Supreme Court upheld the Affordable Care Act (ACA), then-President Obama publicly charged that any decision “overturn[ing] a duly constituted and passed law” would be an “unprecedented, extraordinary step” of “judicial activism” as well as undemocratic. Obama – a former constitutional law professor – presumably knew that not every law passed by Congress is constitutional, and that it’s the Court’s job to decide whether it is constitutional. He certainly did not believe laws passed by Congress were necessarily constitutional when, fourteen months before his comments on the ACA case, he directed his Justice Department not to defend the constitutionality of the Defense of Marriage Act (DOMA). (Obama himself had previously opposed gay marriage.)
This is now the Democrats’ go-to response to any Supreme Court decision with which they disagree – the Court is playing politics, instead of deciding the case on a legal basis. Needless to say, the latter necessarily means the Court supports any position favored by the Democrats.
Arguably, the Chief Justice’s effort in Dobbs v. Jackson to “split the baby,” so to speak, by upholding the Mississippi law while also re-affirming Roe v. Wade and Casey v. Planned Parenthood was part of Roberts’ efforts to defuse these constant attacks on the Court’s legitimacy.
Which brings us back to the UNC case. For those less skeptical of the high court’s motives, there are reasons to believe there’s a good chance the Court will hold that discriminatory admissions violate the Constitutional guarantee of Equal Protection of the laws. By definition, discriminatory admissions treat people unequally. In these cases, plaintiffs challenge that they are being treated unequally on the basis of race. The Court is especially skeptical about racial classifications and applies exacting standards against them.
In the leading case (Grutter v. Bollinger) on discriminatory college admissions, the Court did not issue a carte blanche for schools to discriminate forever, but only as a temporary means to further the stated goal of diversity of perspectives. (LIF’s William Jacobson filed an amicus brief in the Harvard and UNC cases explaining the fallacy of Grutter’s reasoning.) Even O’Connor’s majority opinion stated, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” That was nineteen years ago. With the exception of Justice Thomas, the Supreme Court’s composition has completely changed since Grutter was decided in 2003; Thomas dissented from the part of Justice O’Connor’s opinion upholding discriminatory admissions.Two other justices – the Chief Justice and Justice Alito – had joined the Court by the time it decided the 2007 discriminatory admissions case, Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1. In that case, the Court rejected a school district’s racial classification scheme. Thomas and Alito both joined Roberts’ plurality opinion, in which the Chief Justice opined, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
It seems reasonable to suppose that there are already three justices willing to rule that discriminatory admissions violate the Constitution, and since then, three more conservative justices have joined the Court.
Whether the Court disallows UNC’s and/or Harvard’s admissions policies or not, there’s a good chance the discriminatory admissions cases will be the Court’s most significant cases next term. It’s unlikely that the Court would uphold discriminatory admissions in a case involving a state university while rejecting it in a private school case, so in many ways UNC is the more significant case. That makes it all the more important that the new Democratic appointee, herself a minority, have a voice in deciding the case, and be seen to have a voice in deciding the case.
That is especially so if the Court ends up disallowing discriminatory admissions. Jackson’s presence won’t prevent criticism of the Court for reaching a “political” decision; but her absence would give critics another weapon.
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