Civil and Human Rights

The Supreme Court revisits affirmative action today. The stakes are high.

The Supreme Court will hear oral arguments this morning in two highly anticipated cases in which the justices consider whether Harvard and the University of North Carolina — and, by extension, other public and private universities — can use race as a factor in admissions.

As our colleague Robert Barnes points out, college administrators’ authority “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.”

The Supreme Court has undergone almost a complete turnover in the 19 years since O’Connor’s prediction. For the first time in its history, White men don’t make up the majority of the justices, “and includes justices who say affirmative action programs directly shaped their lives.”

On the other hand, the court now has a more dominant conservative majority in place.

Here are a few points to watch as the arguments unfold today:

  • Where the justices stand: Justice Clarence Thomas is an outspoken opponent of affirmative action. Justice Sonia Sotomayor is its boldest defender and once called herself the “perfect affirmative action child.” Chief Justice John G. Roberts Jr. has been animated for decades by “a deep skepticism of what he has called the ‘sordid business’ of dividing Americans by race,” Barnes writes. (Here’s what each justice has said about affirmation action in the past.)
  • A potential wild card: “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,” Barnes writes.  “Kavanaugh’s record as an advocate and judge suggest an aversion to racial classifications. But he has also displayed an aggressive pursuit of diversity among the clerks he has hired, with repeated outreach to Black student organizations at the nation’s elite law schools.”
  • What Harvard and UNC will argue: “Universities say there is a continuing need for affirmative action to build diverse student bodies, which they say strengthen the overall learning environment with distinct perspectives and experiences,” our colleague Ann Marimow writes. “Look for lawyers representing Harvard and UNC to characterize as ‘holistic’ the process the universities use to review applicants. If schools are not permitted to use race, these universities say, enrollment by minorities could decline dramatically.”
  • What they’ll say about Brown: Both sides claim the legacy of Brown v. Board of Education, the unanimous 1954 decision in which the justices ruled against segregation in public schools. And both of them might have a point. “The Brown opinion is profoundly ambiguous, and they are appealing to different aspects of the opinion, legitimately different aspects,” Michael W. McConnell, a Stanford law professor, told the New York Times’s Adam Liptak. “Is it a case about not assigning on the basis of race or is it a case about making sure that African American schoolchildren get a fair shake in education?”
How the justices could directly impact the diversity of lawyers who argue before them.

During our reporting on why women and Black and Hispanic lawyers are underrepresented among lawyers who argue before the Supreme Court — which we shared in a special edition of this newsletter on Sunday — a few people raised an interesting point: While the justices have limited influence over who argues before them, they do have the power to appoint lawyers to make oral arguments. They occasionally use it.

This happens about once or twice a term — often when there is a change in administration and the Justice Department no longer wants to be part of the case, or because a party to a lawsuit withdraws and the court still wants to hear an argument in favor of their position.

The justices have overwhelmingly appointed white men to argue these cases, and they’ve usually tapped former clerks, according to lawyers and academics who follow the court.

  • “That is a place where the court itself could if it wanted to make a priority of increasing diversity,” said Brianne Gorod, chief counsel at the constitutional Accountability Center. “It is not something that they’ve really taken advantage of in most of their recent appointments.”

Since 2000, at least 33 lawyers have been appointed by the court to argue before the justices, according to data collected through 2016 by Kate Shaw, a professor at Yeshiva University’s Benjamin N. Cardozo School of Law and a former Supreme Court clerk, and by The Early in the years since. (Flip to page 63 of Shaw’s law review article for her list.)

The Early ascertained the gender of all these lawyers: 27 are men and six are women.

The Early couldn’t confirm a significant percentage of the race of these lawyers. But Deepak Gupta, whom the court picked to argue in Smith v. Berryhill in 2019, testified before President Biden’s Supreme Court commission last year that of the roughly 70 amicus appointments the court has made since 1926, “a mere seven have been women and only four have been people of color.”

Gupta urged the court to broaden its current practice of allowing the justice with responsibility for the circuit court where the case arose to select a former clerk. The court should “consider creating an advisory panel — diverse both in demographic characteristics and in subject-matter expertise — who could recommend advocates to the Supreme Court to appoint when appropriate,” Gupta said in written testimony.

  • “Although amicus appointments account for a limited number of arguments in any Term, expanding the voices heard before the Court is in keeping with the Court’s role as an institution that should reflect the diversity of the bar as a whole,” Gupta added.

The appointments can help former clerks secure their first arguments before the court. The first case that Roberts argued — United States v. Halper in 1989 — was as a court-appointed lawyer.

Shaw’s analysis went back to 1926, and she was surprised how little had changed in nearly a century.

“In reviewing the fifty-nine amicus invitations the Court has issued, the lack of demographic diversity is immediately striking,” she wrote. “This is to be expected in the case of early invitations, but the continuing exclusion of women and minorities from the amicus ranks is surprising.”

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