Starting October 31st, the Supreme Court has taken some of the most important ‘affirmative action’ cases in recent years. Judging from the first day of hearings, many legal experts fear that race-conscious hiring and admission practices might soon be coming to an end, as the arguments in favor of minority-uplifting public policies were not received well by the most conservative Supreme Court in decades. If affirmative action as a category is declared unconstitutional, the SCOTUS might deal a death blow to the limited ongoing efforts towards the uplifting of racial minorities in the country.
During the current term, the Supreme Court – three out of the six conservative Judges of which were appointed by former President Trump – will be hearing two landmark cases surrounding affirmative action. The hearings for both Students for Fair Admissions v. President and Fellows at Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina began on the day of Halloween. The Court is likely to arrive at a decision by June 2023 before the next summer recess.
The cases form the most recent of a long line of Supreme Court decisions that have so far upheld the legality of affirmative action despite minor setbacks. The contentious hearings Monday give the impression that this policy might be nearing its end very soon. Affirmative action and workplace and campus diversity have been universally shown to hold many benefits for society and even small organizations in the long run.
The Justices focused on a few key points to try and discredit the affirmative action programs in question. One central objection raised by Justices Brett Kavanaugh and Amy Coney Barrett regarded the logical end point of policies aimed towards racial equity. They directed U.S. Solicitor General Elizabeth Prelogar and North Carolina Solicitor General Ryan Park repeatedly to the 2003 decision in Grutter v. Bollinger, in which Justice O’Connor wrote that: “25 years from now, the use of racial preferences will no longer be necessary”, and declared the practice “So potentially dangerous”. However, since then, very little actual progress has been made towards equity in education, and the need for affirmative action clearly remains intact.
In one of the most notable instances during the hearings, Harvard attorney Seth Waxman was involved in a heated exchange with Justice Samuel Alito and Chief Justice John Roberts, both of whom have expressed skepticism towards affirmative action in the past. Once forced to admit that ‘race’ might sometimes become a determining factor between students with similar test scores, Waxman countered the Chief Justice’s argument by comparing racial identity to oboe skills, which can also count towards an elevated chance of successful admission. Roberts responded: “We did not fight a Civil War about oboe players. We did fight a Civil War to eliminate racial discrimination.”
The Chief Justice of the Supreme Court also wondered whether students who spoke of their troubled history with discrimination in essay format can also receive preferential treatment, and was answer in the affirmative. Justice Thomas was the only one on the bench who openly challenged the very notion of ‘diversity’ and its well-proven benefits to student performance.
The conservative group pushing these cases has primarily used Asian Americans as its frontline defense against allegations of promoting systemic racism. Despite the impression that Asian Americans are somehow being left behind due to the preferential admissions of people from marginalized Black and Brown communities, more than 70% of them continue to support affirmative action.