Sunday, November 6, 2022

On Affirmative Action, Precedents Be Damned

         For the past twenty years, U.S. colleges and universities have relied on a Supreme Court decision that allows admissions committees to consider an applicant’s race in seeking to further the universities’ compelling interest in racial diversity on their campuses. 

            The Supreme Court heard five hours of oral arguments last week [October 31] in legal challenges filed by a conservative advocacy group, Students for Fair Admissions, against admission policies at two of the country’s most prestigious universities, Harvard and the University of North Carolina (UNC)

            The plaintiffs in the two cases alleged that Harvard and UNC violated federal civil rights law by discriminating against Asian-American applicants, based on lower personal scores for Asian-American applicants than those given to black or Hispanic applicants. The two lower court judges who ruled in the cases both rejected the allegations and ruled in favor of the two universities on all counts.

            Both judges found that Harvard and UNC complied with the applicable precedent, Grutter v. Bollinger (2003). The plaintiffs nevertheless asked the present-day Supreme Court to review the decisions; the justices agreed and set up a contentious showdown on affirmative action before a Court much different from the Court that upheld affirmative action in Grutter.

            The Court that upheld affirmative action in 2003 was ideologically divided, of course, but not along political party lines. The Court’s liberal bloc consisted of two Democratic appointees, Breyer and Ginsburg, and two Republican appointees, Stevens and Souter. Two other Republican appointees, O’Connor and Kennedy, occasionally gave the liberal bloc fifth votes allowing the liberal justices to prevail as in Grutter.

            The 2022 Court, on the other hand, consists of a supermajority of six Republican appointed conservatives, with a diminished liberal bloc consisting of three Democratic appointees: Sotomayor, Kagan, and the newest justice, Ketanji Brown Jackson.

            Senate Republican leader Mitch McConnell deserves the discredit for packing the Supreme Court with Republican appointees, beginning with his decision in 2016 to refuse a hearing to President Obama’s nomination of Merrick Garland for the vacancy created by Justice Antonin Scalia’s unexpected death. Garland, a well-respected judge of moderately liberal views, would have posed a difficult problem for Senate Republicans to develop evidence sufficient to deny him confirmation.

            McConnell also engineered the Senate rules change that allowed President Trump’s three nominees to the Court to win confirmation with fewer than sixty votes, the threshold that had obtained for many years before. Trump’s three nominees – Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – all won confirmation by historically narrow margins with scant bipartisan support: 54-45 for Gorsuch; 50-48 for Kavanaugh; and 52-48 for Barrett.  Three Democratic senators voted for Gorsuch; no Democrats voted for Kavanaugh or Barrett, making them the first justices in a long time to win confirmation without any support from senators of the opposing party.

            In nominating Gorsuch, Kavanaugh, and Barrett, Trump sought to fulfill his campaign pledge to appoint justices who would vote to overturn the Roe v. Wade abortion rights precedent. Democratic senators questioned all three closely on the issue, but all three avoided definitive answers by describing the 1973 precedent as settled law. Despite those assurances, all three joined in the 5-3 decision in Dobbs v. Jackson Women’s Health Organization (2021) to overturn Roe v. Wade and allow states constitutional leeway to ban abortion if they chose.

            The legal doctrine of respecting precedent, known in Latin as “stare decisis” (let the decision stand), dictates that a new court ought not to overturn a prior decision merely because the present-day justices view the earlier decision as wrong. Instead, Supreme Court jurisprudence generally requires one or more of several factors in order to overturn a prior decision: the earlier decision has proved to be unworkable, has led to adverse consequences, or conflicts with present-day legal doctrines.

            In five hours of oral arguments in the Harvard and UNC cases, conservative justices made clear that they disapprove of Grutter but addressed those factors hardly at all. In fact, the first and only reference to stare decisis came when Solicitor General Elizabeth Prelogar, at the end of the arguments in the UNC case, explicitly urged the justices not to overturn the earlier decision. “I think that Petitioner bears a heavy burden in this case because we're in a situation
where stare decisis considerations apply,” Prelogar explained, “and I think it would be destabilizing for the Court to turn its back on precedent here.

            From the bench, Thomas in fact flatly rejected the justification that the Grutter Court had cited in allowing universities to consider applicants’ race in admission decisions—specifically, to foster racial diversity on campus. “I’ve heard the word diversity quite a few times,” Thomas remarked, “and I don’t have a clue what it means. It seems to mean everything for everyone.”

            In fact, a decision to bar consideration of race in admissions decisions would force hundreds of universities across the country to change their policies. In one of its briefs, Harvard told the Court that 40% of all U.S. universities consider applicants’ race in admissions decisions and added further that 60% of all selective universities take race into account into admissions decisions.

            Prelogar’s words likely had little if any impact on the so-called conservatives on the Court. They already showed themselves last year on abortion rights to be radicals who will not hesitate to turn their backs on precedent even at the cost of destabilizing politics and the law.




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