More on the Harvard and UNC oral arguments

In my initial post about the oral arguments in the two Supreme Court cases challenging race-based preferences in college admissions, I speculated that the Justices might divide three ways in these cases. That’s what happened in the Bakke case all those years ago.

There, the Court divided 4-1-4. Justice Powell was in the middle, with his “diversity” rationale for discrimination. This time, the division might be more like 4-2-3 (and no, I’m not talking about the soccer formation of a team that’s had a player sent off).

Ilya Somin, writing at the Volokh Conspiracy, also sees three ways the Justices could go. A minority is almost sure to reaffirm past precedent and uphold lower court rulings that the policies of Harvard and UNC are legal.

A majority, Somin predicts, will conclude that the Harvard and UNC policies are illegal, but the Justices within that majority have two options for how to rule on the matter of racial preferences. One option, Somin says, is “to simply rule that ‘diversity’ is not a ‘compelling state interest’ justifying the use of racial discrimination by government under the Fourteenth Amendment, and that such discrimination also violates Title VI.”

But, like me, Somin isn’t sure this position will command a majority. Thus, some Justices might find it more attractive to rule against Harvard and UNC without rejecting the diversity rationale altogether:

In this scenario, as described by Somin, diversity would still be recognized as a "compelling state interest" capable of justifying the use of racial classifications in admissions. However, the approaches used by Harvard and UNC would be deemed insufficient to pass the other requirement of the "strict scrutiny" test the Court has long imposed on racial preferences — that such policies be "narrowly tailored" to the achievement of the compelling interest that justifies them.

Universities would be required “to clearly specify what benefits of diversity they are seeking, and provide strong evidence that racial preferences really do achieve those benefits in a way that cannot be matched by race-neutral policies.”

What signs were there that some Justices favor this approach?

Several conservative justices asked how long diversity preferences should last, how we can measure the claimed educational benefits of diversity, and whether admissions policies could be more precisely tailored to the achievement of those benefits. Those questions might indicate an interest in tightening up judicial review of diversity preferences, without banning them completely.

Concern about how long race-based admissions preferences will last isn’t new. In Grutter, Justice O’Connor famously predicted (or hoped) that they would only be needed for 25 more years.

But the concern goes back much further. It has been reported that, in Bakke, Justice Powell was prepared to join with four liberals and uphold racial preferences on remedial grounds. But when Justice Thurgood Marshall disabused him of the idea that the preferences wouldn’t be needed indefinitely, Powell decided to fly solo.

So far, however, diversity-based preferences have turned out to be as endless as the remedy-for-societal-discrimination ones Powell rejected would have been.

Yesterday, the lawyers defending the preferences were less honest than Thurgood Marshall was. Realizing how important an end-point to the discrimination is for Justice Barrett, in particular, they suggested that the end is in sight.

I don’t think they convinced anyone. It’s hard to foresee an end to the preferences given how pronounced they are and given the argument of the universities and the government that ending them would drastically shrink black representative on campus. Justice Sotomayor herself insisted that the conditions she believes necessitate preferences for blacks have not improved since Grutter was decided.

One argument the pro-preferences counsel tried out in the UNC case maintained that the end-date will vary from state to state. North Carolina, it was suggested, is lagging behind some other states because of a particularly egregious history of race discrimination there and at the state’s flagship university.

But there’s no reason to believe that discrimination from 40 years ago or more is causing today’s black applicants to college (born around 2004) to lag behind Asian-American applicants (many of whom are the children of recent immigrants and some of whom weren’t born here).

The most important difference between the circumstances of these two sets of applicants is family structure and commitment to education. This vital difference can be expected to continue indefinitely (especially since racial preferences remove the incentive for black students to compete academically with white and Asian-American students). So too, therefore, will the need for stark racial preferences to persist, if current levels of black representation at colleges like UNC and Harvard are to be maintained.

I also want to refer readers to Josh Blackman’s piece about the oral arguments. Blackman dives into the lines of questioning by all nine Justices in the UNC case. (He promises to analyze the Harvard argument in a follow-up post.)

Blackman saw squishiness in Justice Kavanaugh’s questioning. However, he found the other five Republican-nominated Justices pretty comfortable with the positions of the Asian-Americans who challenge the racial preferences granted by Harvard and UNC.

Readers with an interest in the arguments should also check out Ed Whelan’s posts at Bench Memos, especially this one.