The Supreme Court’s Conservatives Dig in Against Affirmative Action

The Court’s conservative justices said Texas hasn’t justified the use of race in college admissions.

Supreme Court Justice Antonin Scalia
AP Photo/Rogelio V. Solis
Sam Baker
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Sam Baker
Dec. 9, 2015, 12:35 p.m.

The Su­preme Court’s con­ser­vat­ive justices took a hard line Wed­nes­day against af­firm­at­ive ac­tion, sug­gest­ing that uni­versit­ies will have a dif­fi­cult time jus­ti­fy­ing the use of race even as a minor factor in their ad­mis­sions de­cisions.

In or­al ar­gu­ments over the ad­mis­sions policies at the Uni­versity of Texas, the Court’s con­ser­vat­ives ques­tioned wheth­er the school’s af­firm­at­ive-ac­tion pro­gram works and, even if it does, wheth­er it meets the high bar the Court ap­plies to pro­grams that as­sign a race-based pref­er­ence.

“I don’t think it stands to reas­on that it’s a good thing for the Uni­versity of Texas to ad­mit as many black stu­dents as pos­sible,” Justice Ant­on­in Scalia said.

As the uni­versity’s at­tor­ney ex­tolled the vir­tues of fos­ter­ing di­versity at the state’s flag­ship cam­pus, Scalia sug­ges­ted not only that the state was go­ing about it in­cor­rectly, but that the goal it­self might be mis­placed.

“Most of the black sci­ent­ists in the coun­try don’t come from schools like the Uni­versity of Texas. They come from less­er schools,” Scalia said.

The Court’s con­ser­vat­ives were clearly angling for a rul­ing that Texas had not met its bur­den for jus­ti­fy­ing the use of race in col­lege ad­mis­sions. But Justice An­thony Kennedy—who al­most cer­tainly holds the de­cid­ing vote in the case—seemed at least open to giv­ing the school an­oth­er chance.

Kennedy was at times skep­tic­al of Texas’s ar­gu­ments on Wed­nes­day, par­tic­u­larly as his fel­low Re­pub­lic­an ap­pointees pressed the school’s at­tor­ney for more evid­ence that af­firm­at­ive ac­tion was ne­ces­sary. But Kennedy floated the idea of send­ing the case back to a tri­al court, which would give the uni­versity a chance to add new evid­ence to the re­cord.

It would be the second time the Su­preme Court has punted in this case. It first heard the case in 2013, and de­cided to send it back to a fed­er­al ap­peals court for a new hear­ing. And Kennedy seemed frus­trated Wed­nes­day that the evid­ence was largely the same this time around.

“We’re just ar­guing the same case,” Kennedy said.

A new tri­al might be the uni­versity’s best hope. Its at­tor­ney, Gregory Garre, met ag­gress­ive ques­tion­ing Wed­nes­day from con­ser­vat­ive justices who said the school has not ad­equately jus­ti­fied the use of a ra­cial pref­er­ence in ad­mis­sions.

The Court has pre­vi­ously said that state uni­versit­ies have a le­git­im­ate in­terest in pro­mot­ing di­versity, but they must prove that their af­firm­at­ive-ac­tion pro­grams are “nar­rowly tailored” to ad­vance that in­terest. In 2003, the Court up­held the use of af­firm­at­ive ac­tion partly as a way to cor­rect for past dis­crim­in­a­tion, sug­gest­ing that it wouldn’t be ne­ces­sary in an­oth­er 25 years.

Since Chief Justice John Roberts joined the Court in 2005, that clock has been tick­ing es­pe­cially loudly. And Roberts was clearly anxious on Wed­nes­day to put an end to ra­cial pref­er­ence in col­lege ad­mis­sions.

“Are we go­ing to hit the dead­line? Is this go­ing to be done in 12 years?” Roberts asked.

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