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.

 

 

 

Justices Poised Again to Upset Precedent

         With the Supreme Court’s new term set to open in three weeks, the Republican-packed bench may be on the verge of overruling another important precedent just as the justices did last year in overruling the landmark abortion rights decision, Roe v. Wade.

            The Court gets its first clear shot at mocking “equal justice under law” this term when the justices will hear oral arguments in companion cases challenging affirmative action admissions policies at Harvard University and the University of North Carolina. The two cases, brought in the name of the self-styled advocacy group Students for Fair Admissions (SFFA), are the handiwork of Edward Blum, a litigation-crazy opponent of affirmative action who has tilted at this windmill for thirty years without success so far.

            Two lower federal courts reviewed Harvard’s admissions policies and upheld the policies as conforming to the applicable precedent, Grutter v. Bollinger (2003), which allows colleges and universities to consider an applicant’s race or ethnicity as part of a “holistic evaluation” of the applicant’s qualifications for admission. A federal district court similarly upheld UNC’s admissions policies, based on Grutter.

            SFFA is asking the Court in both cases to overrule Grutter, despite the stare decisis presumption in favor of reaffirming past decisions. Here is SFFA’s framing of the question in the Harvard case for the Court to consider: (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.

            The federal district court in the Harvard case and the U.S. Court of Appeals for the First Circuit both found that Harvard was not discriminating against Asian American applicants. In its 104-page opinion, the First Circuit concluded that Harvard does not engage in racial balancing in its admissions process. “Harvard's use of race in admissions is contextual and it does not consider race exclusively,” the three-judge panel wrote. “Next, Harvard's process does not weigh race so heavily that it becomes mechanical and decisive in practice. Harvard's undergraduate admissions program considers race as part of a holistic review process.”

SFFA brought the UNC case to the Supreme Court without waiting for an appeal to the Fourth Circuit. The justices granted certiorari before judgment on January 24, 2022, in order to hear the UNC case along with the Harvard case. As it happens, however, the Court’s new justice, Ketanji Brown Jackson, is recused from the Harvard case because of her past affiliations with the school; and, for that reason, the justices decided to separate the two cases for oral arguments. The Harvard case is now set for oral arguments on Monday, October 31; with time granted for the solicitor general to argue in support of Harvard’s position.  The UNC case will be heard separately on a later date.

            Blum’s chances for overruling Grutter turn solely on the changes in the Court’s personnel in the past two decades thanks to Republican appointees narrowly confirmed by a Senate with a bare Republican majority. The five justices who joined the Court’s majority opinion in 2003 are no longer on the Court; two of those in the majority have been succeeded by Republican appointees: Alito succeeded O’Connor, who wrote the majority opinion; and Barrett succeeded Ginsburg after her death.

            The overwhelming weight of amicus briefs filed with the Court in both cases favors reaffirming Grutter and rejecting SFFA’s legal challenges. In its brief in the Harvard case, for example, the Biden administration states emphatically that “the educational benefits of diversity remain of compelling interest to the United States.”

            In its briefs in the two cases, SFFA only barely addresses the specific factors traditionally looked to in considering whether to overrule a prior decision. Grutter, SFFA argues, was and is “grievously wrong.” The group fails to answer the arguments from the two schools and from the various groups that filed supporting briefs that overruling Grutter would undermine the reliance interests that various colleges and universities have in having adopted admissions policies to conform with the Court’s guidelines.

            The legal groups supporting Harvard and UNC include such well-established organizations as the American Bar Association, the American Civil Liberties Union, and the NAACP Legal Defense Fund. In its brief in the UNC case, the Legal Defense Fund noted that  UNC did not admit black applicants until 1951 and that despite the school’s current race-conscious policies, black men comprised only 95 members of the 4,500-member incoming class in 2021. Overruling Grutter, the brief warned, would mean that “very few Black students would have an opportunity to attend the state’s flagship taxpayer-funded university.”

            In another of the amicus briefs, a brief filed on behalf of twenty-five Harvard student and alumni organizations and written by LDF lawyers, the LDF lawyers argued that “race-conscious admissions are necessary because, given opportunity gaps, traditional indicia of merit underpredict the potential of many applicants of color.”

            “Eliminating Race-Conscious Admissions Would Decimate the Numbers of Certain
Students of Color, Especially Black Students, at Harvard,” the brief warned.

            As in the LDF brief in the UNC case, the lawyers noted in this brief what they called Harvard’s “near-categorical exclusion of Black, Latinx, Native/Indigenous, Asian American,
and other students of color” until recent times. The brief also notes that nearly seventy years after Brown v. Board, racial segregation persists in K-12 public education. Specifically, 75 percent of black K-12 students attend racially segregated schools and 80 percent of Latinx K-12 students attend racially segregated schools. These students of color are 20 percent more likely than white students to attend a school with inexperienced or uncertified teaching staffs.

            The persistence of racial inequality in public K-12 education counsels strongly against SFFA’s formalistic arguments for prohibiting any consideration of race in college and university admissions.  The justices would be well advised to take into full account the wisdom of the great justice Oliver Wendell Holmes Jr. “The life of the law has not been logic,’’ Holmes explained, “it has been experience.”

Will Republican Court Shred Voting Rights Act Again?

            The Republican-majority Supreme Court is actively collaborating with Republican-controlled legislatures in two southern states to allow congressional elections in November that effectively deny black voters political rights ostensibly guaranteed to them by the federal Voting Rights Act. The legislatures in the two states, Alabama and Louisiana, drew congressional districting plans with only a single majority-black district, not two such districts as lower federal courts ruled were necessary to comply with the Voting Rights Act.

            Federal courts in those two states ordered the states to redraw congressional districts to create new maps with a second majority-black district with plenty of time to draw new maps and adjust filing deadlines to allow congressional elections in November to give black voters the opportunity to elect candidates of their choice in two districts in each of the states.

            Both states rushed to the Supreme Court to cry foul and ask for some special consideration to stay the lower court rulings. In both cases, Republican justices obliged and granted stays – in shadow-docket actions -- that effectively reversed the lower court decisions by preventing the use of new congressional districts in the November elections.

            In the Alabama case, Merrill v. Milligan, the state filed its application for a stay on January 28, just four days after the district court’s ruling. The Court granted the stay one week later on a 5-4 vote, with five Republican-appointed justices forming the majority against the dissenting votes of Chief Justice Roberts and the three Democratic-appointed justices Breyer, Sotomayor, and Kagan.   

            Writing for the three Democratic-appointed justices, Justice Elena Kagan commended the district court’s handling of the case. “The District Court here did everything right under the law existing today,” Kagan wrote in the dissent. “Staying its decision forces Black Alabamians to suffer what under that law is clear vote dilution.”

            Vote dilution is a harm that the Voting Rights Act and Supreme Court decisions interpreting the law are meant to prevent. The legislatures in the two states applied a standard redistricting technique to impose that harm – the term is “packing” and “cracking,” packing black voters into a district with a black supermajority and “cracking” the other black communities into several districts, so that the black voters would be badly outvoted by white voters in those districts.

            In both cases, the lower federal courts found that black voters were sufficiently numerous and sufficiently compact to comprise a majority in a second majority-black congressional district drawn in conformity with general redistricting principles.  Evan Milligan, the named plaintiff in the Alabama case, praised the district court’s decision when it was issued.

“We deserve to be heard in our electoral process, rather than have our votes diluted using a map that purposefully cracks and packs Black communities," Milligan said in a statement. “Today, the court recognized this harm and has ordered our elected officials to do better.”

Unfortunately for the plaintiffs’ case, the Supreme Court did not do better, but instead did worse by scheduling oral arguments on October 4. By staying the district court’s decision, five Republican-appointed justices denied black voters in Alabama the opportunity for fair congressional elections in November. Given the history of racially polarized voting in Alabama and Louisiana, the legislatures’ refusals to create a second majority black district effectively limit Democrats to no more than a single seat in the House delegations from both states.

The justices presumably know that political control of the House of Representatives may turn on no more than a handful of seats in the November elections. So the Court’s decisions in the two cases could help tip the balance of power to Republicans after November.

Louisiana officials asked the Court to stay the district court’s decision in the Louisiana case, Ardoin v. Robinson, on June 17; the Court obliged less than two weeks later, on June 28, with the three liberal justices dissenting – Breyer, Sotomayor, and Kagan,  in this case without Roberts.

            In the meantime, the Court had granted certiorari in the Alabama case, setting the stage for full briefing and oral arguments after the new term opens in October. The Court’s order in the Louisiana case specified that the justices would hold that case “in abeyance” pending the decision in the Alabama case.

            The stage is now set for the Supreme Court to give the Voting Rights Act a more favorable reception than the justices gave it in the most recent Voting Rights Act case, Brnovich v. Democratic National Committee (June 2021). In that case, Justice Samuel Alito led a 6-3 decision, split between Republican-appointed justices in the majority and Democratic-appointed justices in the minority, in finding no Voting Rights Act violations in election policies in Arizona that plainly hampered the ability of minority voters to cast ballots.

            Alito reached that result by disregarding a congressional amendment to the Voting Rights Act that forbade any election policy or practice that “results in a denial or abridgement of the right . . . to vote on account of race or color.” Instead, he effectively reverted to an earlier version of the act that the Court had interpreted to prohibit election practices only if deliberately intended to discriminate on the basis of race or color.

            The Court in the Alabama and Louisiana cases could conceivably do even more damage to the Voting Rights Act. Roberts, it will be recalled, was no fan of the act when Congress enacted the law in 1965.

In Kansas, Voters Reject SCOTUS on Abortion

    In his opinion for the Court overruling the Roe v. Wade abortion rights precedent, Justice Samuel Alito may have expected a rush of public approval for reducing the courts’ role on the issue and turning it over instead to state legislatures. But the evidence six weeks later suggests that the public rejects rather than welcoming the Court’s decision.

            In fact, legislatures in several states responded quickly to the Court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization to overrule Roe v. Wade and nullify any nationwide constitutional right to abortion. Legislatures in some states voted to completely ban abortions and in other states enacted laws that sharply limit the discretion for women and their doctors to consider terminating an unwanted pregnancy.

            On the other hand, however, the people of Kansas voted last week [Aug. 5] by an overwhelming margin to reaffirm the judicially recognized right to abortion under the state’s constitution and to reject the accompanying provision to authorize the state’s legislature to ban or otherwise restrict abortion rights. With more than 922,000 Kansans going to the polls to vote on the referendum, 543,855 (or 59%) voted against a proposal that the Kansas constitution be amended to remove protections for abortion rights, while only 378,466 (or 41 percent) voted in favor.

            The vote in Kansas corresponds with public opinion polls following the Supreme Court’s decision that indicated 60 percent of Americans opposed the decision to overrule Roe v. Wade. Alito seemed to appeal to public sentiment with the final paragraph in his massive, 35,000-word opinion.

“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” Alito wrote, on behalf of five justices. “Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

            Alito opened by declaring Roe v. Wade “egregiously wrong” and went through a check list of factors to consider in overruling a prior decision. It must be noted that among twenty-one justices to have served on the Court since 1973, only eight – a small minority – have ever voted to overrule Roe v. Wade, which itself was a 7-2 decision with five Republican-appointed justices in the majority.

            Never before in U.S. history has the Supreme Court withdrawn a legally protected right important to wide segments of the American populace. Nor has the Court ever before overruled a precedent after a president based his campaign and his presidency on a promise to appoint justices who would vote to overrule the prior decision. It must be stressed that this is not law, this is nothing more than politics.

            Some have interpreted the Kansas referendum as a triumph for democracy, but it is a perversion of constitutional democracy to force the people to vote to preserve a right legally protected for nearly a half-century. Imagine a hypothetical analogy in which the Court overrules Brown v. Board of Education after fifty years and gives southern school boards the right to reinstitute racially separate school systems for white and black students.

            The hypothetical post-Brown Court might explain that the Brown Court erred in finding any legally protected right to public education in a Constitution that makes no reference to education, just as Alito and the other justices declared that the Constitution makes no mention of abortion either.

            Indeed, in a concurring opinion, Justice Clarence Thomas called for overruling several other precedents, important to wide segments of the American populace: Supreme Court decisions that guarantee the right to contraception, that protect the right for private, consensual gay sex, and that guarantee marriage equality for same-sex couples.

            In his opinion for the Court, however, Alito answered Thomas by stating that the decision does not implicate any of the other substantive due process precedents that Thomas wants to scrap.  The vote in Kansas suggests that Americans are in no rush to curb the power of courts to recognize constitutional rights to privacy on such intimate subjects as contraception and marriage.

            The eventual effects of the Court’s decision will turn on the actions of legislatures in the various states, but one result is certain: a patchwork of laws on reproductive rights that differ widely from blue states to red states.

            For now, however, this much can be stated with certainty. The Supreme Court has defied public opinion, rather than serving public opinion, by overruling a forty-nine-year-old precedent that three generations of American women have counted on in planning their personal and professional lives.

            Indeed, three of the justices who joined Alito’s opinion – Gorsuch, Kavanaugh, and Barrett – all circumspectly described Roe v. Wade as settled precedent in their Senate confirmation hearings. None of them then described Roe v. Wade as “egregiously wrong,” Alito’s characterization to which they now have concurred.