Supreme Court hears arguments on college affirmative action cases

By Tierney Sneed, Dan Berman, Melissa Macaya and Meg Wagner, CNN

Updated 6:33 p.m. ET, October 31, 2022
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6:17 p.m. ET, October 31, 2022

Takeaways from SCOTUS affirmative action cases: Conservatives are skeptical of use of race in admissions

From CNN's Tierney Sneed

Members of the public enter the Supreme Court to attend oral arguments on Monday.
Members of the public enter the Supreme Court to attend oral arguments on Monday. Francis Chung/E&E News/Politico/AP

Conservative Supreme Court justices were hostile on Monday to the ongoing use of race-based affirmative action in college admissions.

The court took nearly five hours to debate affirmative action policies at the University of North Carolina and Harvard.

Based on Monday’s oral arguments, the six conservative justices appear ready to end the use of affirmative action in admissions, overturning a precedent from 1978.

Here are key takeaways from today's oral arguments:

Conservatives say defenders of affirmative action can’t articulate an end point 

The conservative wing of the court harped on the lack of clarity around when the need for affirmative action would end. Multiple justices asked Ryan Park, the North Carolina Solicitor General who is defending the UNC admissions program, to elaborate on how to measure that a school has achieved the diversity goals that would render affirmative action unnecessary. 

"I don't see how you can say that the program will ever end," Chief Justice John Roberts said during a pile-on that also included Justices Samuel Alito and Amy Coney Barrett. "Your position is that race matters because it's necessary for diversity, which is necessary for the sort of education you want. It's not going to stop mattering at some particular point, you're always going to have to look at race because you say race matters to give us the necessary diversity."

Justice Brett Kavanaugh said the court will struggle if they are asked to review affirmative action again in 10 years, “if you don’t have something measurable” that shows whether the diversity goals have been achieved.  

Thomas questions educational benefit of racial diversity 

Justice Clarence Thomas asked all three lawyers arguing in favor of UNC's affirmative action program — Park, US Solicitor General Elizabeth Prelogar and David Hinojosa, who is representing UNC students defending the program — to explain how racial diversity benefits the educational experience students receive. 

“I may be tone deaf when it comes to all these other things that happen on campus, about feeling good and all that,” Thomas said to Hinojosa. “I'm really interested in a simple thing. .. what benefits academically are there to your definition or the diversity that you're asserting?” 

When he posed the question to Park, Thomas suggests that Park’s response reminded him of the arguments he heard in favor of segregation. 

Jackson says barring all consideration of race invites its own constitutional problems 

Justice Ketanji Brown Jackson warned that if colleges are prohibited from making any consideration of race, it risks violating the Constitution’s equal protection protections for students who will not be able to present that background in their applications.

“I hear a process in which there's a form that says tell us about yourself and people can put all sorts of things. I'm Catholic, I'm from, you know, Los Angeles, I'm Latina, whatever,” she said. “But now we're — we're entertaining a rule in which some people can say the things they want, about who they are and have that valued in the system. But other people are not going to be able to. Because they won't be able to reveal that they're Latino or African American or whatever. And I'm worried that that creates an inequity in the system.” 

Sotomayor points to how states that bar affirmative action have fared 

Justice Sonia Sotomayor returned repeatedly to the statistics coming the schools in states that have barred affirmative action. 

At one point, she raised those trends to push back on conservatives’ invocation of the 25-year timeline the Supreme Court set, in its 2003 ruling sanctioning the use of race in admissions, for affirmative action programs to no longer be necessary. 

“Even your adversary said he didn't see the 25 years as a set deadline. It was an expectation,” Sotomayor said to Park. “What we know we have nine states who have tried it and in each of them as I mentioned earlier, whites have either, white admissions have either, remained the same or increased. And clearly, in some institutions, the numbers for underrepresented groups has fallen dramatically, correct?” 

Harvard grilled on allegations of discrimination against Asian applicants

While the justices raised many of the same issues in the Harvard case's hearing as they did in the early UNC lawsuit arguments, Harvard attorney Seth Waxman got a grilling on the specific allegations of discrimination against Asian applicants -- allegations only being brought in the Harvard case.

Alito pressed Waxman extensively on the evidence that Asian applicants received lower personal ratings in the admissions process than other racial groups. Waxman's attempts to emphasize that race was an important factor in very few of the admission decisions prompted Roberts to remark sharply "So there's only a little racial discrimination in the case?"

Roberts also had a pointed retort in Waxman compared the advantage an applicant might get because of their race to the advantage Harvard would give an oboe player if the school's orchestra was in need of that instrument.

"We did not fight a civil war about oboe players," Roberts said. "We did fight a civil war to eliminate racial discrimination and that's why it's a matter of considerable concern."
6:16 p.m. ET, October 31, 2022

Supreme Court wraps up back-to-back hearings after nearly 5 hours of arguments

From CNN's Tierney Sneed

Attorney Patrick Strawbridge represented the challengers to the University of North Carolina's affirmative action policies.
Attorney Patrick Strawbridge represented the challengers to the University of North Carolina's affirmative action policies. Sketch by Bill Hennessy

The back-to-back hearings over affirmative action admission policies at the University of North Carolina and Harvard wrapped up after nearly five hours of arguments, with the court taking just one 10 minute break between the two cases.

Justice Ketanji Brown Jackson participated only in the UNC arguments after the judge announced she would recuse herself from the Harvard case because she had served on the school’s board of overseers.

The spouses of several justices were present in the courtroom, according to CNN's Ariane de Vogue, who spotted Ginni Thomas, Jane Roberts, Patrick Jackson and Ashley Kavanaugh. Ashley Kavanaugh stayed only for the first hearing, which lasted 2 hours and 45 minutes.

3:06 p.m. ET, October 31, 2022

John Roberts shoots down Harvard attorney’s analogy between race and playing an instrument

From CNN's Tierney Sneed

Chief Justice John Roberts skewered the comparison Harvard’s attorney made between the school’s use of race in admissions and how an applicant who is an oboe player might be given an advantage. 

"We did not fight a civil war about oboe players,” Roberts said. 

The attorney, Seth Waxman, had been arguing that just as race could be a “tip” that secures admission for a candidate of color who is on the bubble, so could playing the oboe if the Harvard orchestra really needs an oboe player. 

Roberts responded that we fought “a civil war to eliminate racial discrimination and that's why it's a matter of considerable concern.” 

4:05 p.m. ET, October 31, 2022

Lone woman arguing today's affirmative action cases notes gender disparities at Supreme Court hearings

For CNN's Tierney Sneed

US Solicitor General Elizabeth Prelogar defended the University of North Carolina's affirmative action program.
US Solicitor General Elizabeth Prelogar defended the University of North Carolina's affirmative action program. Sketch by Bill Hennessy

US Solicitor General Elizabeth Prelogar, while defending the University of North Carolina affirmative action program, emphasized what gender disparities among attorneys who appear before the Supreme Court signify.

She was addressing the questions from conservatives about what affirmative action defenders see as the end point that would allow for the use of race in admissions to end.

Prelogar said that it was not about defining a precise quota, but acknowledging extreme disparities and how they can "cause people to wonder whether the path to leadership is open."

Prelogar was the only female attorney arguing Monday among the six lawyers who participated in the two cases' hearing.

"The court is going to hear from 27 advocates in this sitting of the oral argument calendar, and two are women, even though women today are 50% or more of law school graduates," she said.

"And I think it would be reasonable for women to look at that and wonder, is that a path that's open to me, to be a Supreme Court advocate? Are private clients willing to hire women to argue their Supreme Court cases? When there is that kind of gross disparity and representation, it can matter and it's common sense."

4:33 p.m. ET, October 31, 2022

Samuel Alito grills Harvard attorney on lower personal scores for Asian applicants 

From CNN's Tierney Sneed

Former Solicitor General Seth Waxman argued for Harvard.
Former Solicitor General Seth Waxman argued for Harvard. Sketch by Bill Hennessy

Harvard’s attorney Seth Waxman was subjected to a lengthy and tense line of questioning from Justice Samuel Alito about evidence that Asian applicants received lower “personal scores" during the admissions process.

"The record shows that Asian student applicants get the lowest personal scores of any other group. What accounts for that?" Alito asked. "It it has to be one of two things: that they really do lack integrity, courage, kindness and empathy to the same degree as students of other races. Or there has to be something wrong with this personal score."

Waxman repeatedly tried to direct Alito to what evidence came out during the district court proceedings. He noted that Asians received a statistically higher scores on their extracurricular and academic scores, stressed the limited role the ratings played in the process and emphasized the district court’s findings of no discrimination. 

But Alito continued to press on the significance of the score. “Does it make a different or doesn’t it make a difference?” he said, later asking why the Harvard process even gives the score if it is so insignificant.


2:21 p.m. ET, October 31, 2022

John Roberts: "So there's only a little racial discrimination in the case"

From CNN's Tierney Sneed

Harvard’s attorney Seth Waxman's explanation of the evidence in the case provoked a pointed retort from Chief Justice John Roberts.

Waxman was trying to point out that the proceedings had shown that race had made the difference in "very close to zero" of the admission decisions.

"Well, so there's only a little racial discrimination in the case?" Roberts said sharply.

Waxman paused before answering: "Are you asking me whether Harvard is — you're asking me to answer a question that assumes that Harvard is discriminating on the basis of race? No, I can't accept that."

He was cut off by Roberts, who said, "Isn't that what the case is about, the discrimination against Asian Americans?"

2:00 p.m. ET, October 31, 2022

Alito questions Sotomayor’s assertions about contemporary segregation 

From CNN's Tierney Sneed

A line of questioning by Justice Sonia Sotomayor about how Congress could address de jure segregation — meaning segregation created by government policy — prompting an intervention from Justice Samuel Alito to question whether there is contemporary segregation of that type. 

“Even if we have de jure discrimination now or segregation now, Congress can't look at that?” Sotomayor had asked. "Because we certainly have de jure segregation. Races are treated very differently in our society in terms of their access to opportunity.” 

After Cameron Norris, representing the Students for Fair Admissions, answered, Alito jumped in: “Are you aware of de jure segregation today?” 

When Norris said no, Sotomayor argued that there was, pointing to residential segregation and in schools. 

“There are large numbers of schools in our country that have people of just one race,” she said. “There are schools, districts that have only kids of one race and not multiple race who are not White people. De jure to me means places are segregated. The causes may be different, but places are segregated in our country.” 

1:40 p.m. ET, October 31, 2022

Kagan asks what institutions can do if racial diversity can't be achieved without considering race

From CNN's Tierney Sneed

Justice Elena Kagan sought to corner Cameron Norris, representing the Students for Fair Admissions, in his arguments by raising examples of all the other kinds of institutions that might seek racial diversity. The key question, she said, was what they can do to achieve that if race-neutral mechanism aren't achieving a diversity.

For example, she pointed to how a hospital might want to employ racially diverse medical staff for the benefit of its patients, or how a police force might also seek racial diversity in its ranks. She also raised the interest of judges in hiring a diverse group of clerks

"The question is when the race-neutral means don't get you there, are you prevented from taking race into account in all those ways that I said?" Kagan asked.
1:30 p.m. ET, October 31, 2022

John Roberts suggest applicants can still talk about race even if affirmative action is ended

From CNN's Tierney Sneed

Chief Justice John Roberts asked Cameron Norris, the lawyer arguing against Harvard's affirmative action program, about whether colleges can lawfully consider race if presented in an application essay or in the recommendation for an applicant that discusses the applicant overcoming racial discrimination.

"Do you have any objection to that introduction of race?" Roberts asked. Norris said no, prompting several follows up from justices across the ideological spectrum.

Justice Amy Coney Barrett referenced a quote from Justice Elena Kagan from earlier in the arguments, that by making that distinction, the challengers were "slicing the salami pretty finely."

She asked how colleges should consider application essays where the applicant talked about the cultural traditions related to race.

"I think culture, tradition and heritage are all not off limits for students to talk about and for universities to consider," Norris said.

"They can't consider that they can't read that —and say, oh, this person is Hispanic or Black or Asian and therefore I'm into credit that they need to credit something unique and individual and what they actually wrote, not race itself," he added.