On October 31, I listened to five hours of oral argument at the U.S. Supreme Court in SFFA v. UNC and SFFA v Harvard. Since I doubt many readers had the patience to do that, I’m sharing some of the highlights here.

There was lots of substantive Q & A, but there were amusing parts too, as, for example the way Justice Sonia Sotomayor kept saying “stimulation” when she meant “simulation” and thoroughly confused plaintiffs’ counsel by insisting that America suffers from extensive “de jure” segregation when she meant it suffers from “de facto” segregation. 

The audience was too respectful to laugh at Sotomayor’s gaffs, but they did laugh at the following exchange between Justice Samuel Alito and NC’s Solicitor General, Ryan Park. (He was one of three advocates who spoke on behalf of UNC, and he did a pretty good job.):

JUSTICE ALITO: So let’s say the student has one grandparent who falls within that class. Can the student claim to be a member of an underrepresented minority?

MR. PARK: Yes, we rely on — on self-reporting. And — and we don’t give any

JUSTICE ALITO: All right. One great grandparent.

MR. PARK: If that person believes that that is the accurate expression of their identity, I don’t think there would be any – 


MR. PARK: — problem.

JUSTICE ALITO: — great-great 

grandparent? Are you going to make me continue to go on?

MR. PARK: Right, right, right. I think that as we go on, I agree that it would seem less plausible that that person would feel that this is actually capturing my true racial identity but the same is true for any of the other diversity factors that we rely on.

JUSTICE ALITO: It’s family lore that we have an ancestor who was an American Indian.

MR. PARK: So I — I think in that particular circumstance, it would be not accurate for them to say based on –

JUSTICE ALITO: Well, I identify as an American Indian because I’ve always been told that some ancestor back in the old days was an American — was an American Indian.

MR. PARK: Yes, so I think in that circumstance, it would be very unlikely that that person was telling the truth. 

Elizabeth Warren’s ears must have been burning.

Turning to the substantive discussion, as one would expect, Park and all the lawyers representing the Universities argued that what they were doing was consistent with Supreme Court precedent as established in Grutter v. Bollinger (2003) and subsequent cases.

In Grutter the court applied a doctrine established in University of California v. Bakke (1978). Under that doctrine, universities are permitted to take race into consideration in admissions as long as three conditions are met.

First, the objective can’t be simply to favor one race over another or meet some set quota; instead the objective must be to achieve the educational benefits of diversity. Second, race can’t be the only reason for choosing one candidate rather than another; instead race must be just one factor among many considered as part of a “holistic” analysis. And, finally, consideration of race must be “necessary” in the sense that the university can’t achieve its diversity objectives without taking race into consideration. 

Plaintiffs’ Counsel, on the other hand, argued that the universities could, in fact, achieve their diversity objectives without Affirmative Action and, 44 years after Bakke and almost 20 years after Grutter, they ought to do so.

More importantly, plaintiffs’ counsel argued that Grutter was wrongly decided in the first place and should be overturned. That, in my opinion is true.

The 14th Amendment, which is what the advocates and the court mostly focused, on declares, “No state shall … deny to any person within its jurisdiction the equal protection of the laws,” which seems to clearly forbid treating some people better than others on the basis of race. And Title VI of the Civil Rights Act of 1964 states even more clearly, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” For the textualists on the court, like Thomas and Gorsuch, this constitutional and statutory language ought to be decisive. 

(I should note in passing that, Harvard being a private entity, only Title VI applies in its case, but the UNC case could also be decided on the basis of Title VI alone without reaching the constitutional question. No one discussed that possibility during oral argument, and I don’t think either party briefed it, but it was raised in at least one of the amicus briefs, so it remains a possibility, one that should appeal to Chief Justice Roberts’ minimalist instincts.)

As one would expect, the liberals on the court tossed defendants’ counsel lots of softball questions designed to give defendants’ advocates a chance to claim that race was just one factor among many, and it was really impossible to say that any particular applicant was accepted or denied simply because of their race. Defendants’ advocates also insisted repeatedly that, while they were trying their best, it was still impossible for them to reach their diversity goals without Affirmative Action.

The conservative justices gently pushed back against those claims. Justice Clarence Thomas repeatedly asked for a clear definition of “diversity” and for evidence that it actually serves to improve educational outcomes, but he never got what he considered satisfactory answers.

Thomas also pointed out a major anomaly with the court’s Affirmative Action decisions. In cases involving racial classifications, the court is supposed to apply the strictest level of scrutiny. That means consideration of race will only be permitted if it serves a compelling purpose and is narrowly tailored to achieve that purpose. But in BakkeGrutter and all the other similar cases the court has simply “deferred” to the universities’ claim that diversity is a compelling goal. Why, asked Thomas, shouldn’t the universities be “put to the test”?

This, in my view is a very powerful argument, and if it were taken seriously it would provide a reason to overturn Grutter on its own. There is, in fact, a plethora of excellent research showing that Affirmative Action actually leads to worse educational outcomes. (See, e.g., A Dubious Expediency.)

In another instance of conservative justices pushing back, there was a lot of discussion of exactly when UNC and Harvard would stop discriminating on the basis of race. In Grutter, the court emphasized that racial discrimination permitted under the Bakke doctrine couldn’t go on indefinitely. In her opinion for the court in 2003, Justice Sandra Day O’Conner said:

We are mindful, however, that [a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race. …  Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. … We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. … We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. [Quotation marks and citations omitted.]

With only five years to go, the conservative justices pressed defendants’ counsel on the question of when they would put an end to their Affirmative Action programs, but both counsel for UNC and counsel for Harvard were clear that it was going to take more than five years to do away with racial preferences, and neither was willing to suggest when a phase-out might happen.

While the originalist argument for racial preferences, recently promoted by Justice Jackson, didn’t get a lot of attention, the topic did come up a couple of times. In response to the claim that the framers of the 14th Amendment understood it to permit positive discrimination on the basis of race, Plaintiffs’ counsel pointed to the United States’ Brief in the Re-argument in Brown as a source of citations holding that the framers understood the Equal Protection clause to forbid racial discrimination altogether.

They also pointed out that, apart from two ambiguous examples of federal funding to state schools that were established to educate freed slaves, all the examples of race conscious government programs pointed to by those who took the opposing view were federal programs, and the 14th Amendment only applies to the states.

Finally, and most convincingly, they pointed out that all those programs were remedial in nature and designed to redress immediate harms to specific individuals. That’s a far cry from Affirmative Action plans designed to achieve ill-defined diversity goals.

The evidence that Harvard has been discriminating against Asians for years also didn’t get a lot of attention, but there were enough statistics cited to make a damning case against the university. Harvard’s counsel had little to say in response. Regarding the personality ratings that skewed so badly against Asians, he merely noted that those ratings were subjective. Regarding the data showing that Blacks with academic ratings in the 6th decile were as likely to be accepted as Asians with ratings in the first decile, his responded by noting that those data were only compiled because the rules pertaining to Ivy League sports required them, as if that fact somehow negated their significance. 

Finally, when it comes to pushback by the conservative justices, there was a wonderful exchange between Chief Justice John Roberts and Harvard’s advocate, Seth Waxman. Roberts got Waxman to admit that for some applicants race was the determining factor, which put the lie to the “one factor among many” rationale. (Elsewhere in the discussion it was admitted that race was determinative for at least 45% of Harvard’s Black admittees.) Here’s the exchange from the transcript:    

MR. WAXMAN: Race in some — for some highly qualified applicants can be the determinative factor, just as being the — you know, an oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player will be the tip. 

CHIEF JUSTICE ROBERTS: Yeah. We did not fight a Civil War about oboe players. 

Those are the main things I took away from oral argument. Supreme Court expert Illya Shapiro predicts six votes for the plaintiffs in both cases. I hope he’s right.