'Sordid business': Supreme Court fight over race-conscious admissions puts focus on John Roberts
WASHINGTON – The anti-affirmative action group challenging race-conscious admissions at two major American universities got right to the point this year with the quote it chose to highlight in the opening line of its brief to the Supreme Court.
"It is a sordid business," the group began, "this divvying us up by race."
It wasn't only the message in those words that had significance for the closely watched cases. Just as important was the person being quoted: Chief Justice John Roberts.
When the nation's highest court meets Monday to hear arguments over whether colleges should be permitted to consider the race of applicants, no one will have to wait for the questioning to glean Roberts' position: The chief justice has made it clear throughout his 17-year tenure that he's deeply skeptical of racial preferences.
And that puts Roberts in an unfamiliar position: Usually a moderating force on the Supreme Court – often on the hunt for a narrow outcome – "the chief," as he's referred to by colleagues, could be the key to overturning a 2003 precedent on the issue and undermining race-based programs that supporters say confront discrimination.
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"It is overwhelmingly likely that he will vote against Harvard and UNC," predicted Ilya Somin, a law professor at George Mason University. "I'm not sure there's much of a dilemma for him here."
The better question, Somin and others say, is how far the court will go – and what role Roberts might play in that.
The disputes over the admissions policies at Harvard College and the University of North Carolina are arguably the most controversial the court will hear this term, requiring a deep dive into the fraught issue of race months after the conservative majority overturned Roe v. Wade, wiped away the constitutional right to abortion and faced a still-simmering backlash from the left.
Years in the making, the Harvard and UNC cases could now have profound implications for a nation that continues to wrestle with race nearly six decades after the passage of the Civil Rights Act of 1964. In addition to changing college campuses, a far-reaching decision could also affect private employer diversity efforts.
"The obvious dilemma for the chief is we do have an established precedent and multiple courts have said that ... North Carolina and Harvard are meeting those precedents," said Michael Madden, an attorney who argued on behalf of Seattle schools in 2006 in a case that raised some of the same questions. "So what do we do now?"
'On the basis of race'
Roberts, 67, is no longer the Supreme Court's swing vote – not since President Donald Trump nominated three justices and gave conservatives a 6-3 majority. The abortion decision in June reinforced the point: Roberts sought a limited approach, allowing Mississippi to ban most abortions after 15 weeks of pregnancy but not overturning Roe.
No other justice joined his opinion. Five – Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – voted to overturn Roe.
Yet Roberts, a Buffalo native and Harvard Law grad, remains at the ideological center of the court. He has made his position on racial preferences exceedingly clear. So on this issue, Roberts is more likely to be aligned with his conservative colleagues.
Roberts' "sordid business" quote came from a 2006 opinion, just months into his first term, in which a majority of justices found Texas' congressional redistricting violated the Voting Rights Act by diluting the power of Hispanic voters to select a candidate of their choice. Roberts dissented, noting that the number of districts with a majority of Hispanic voters was roughly proportional to that group's overall population.
When a redistricting plan "provides the maximum possible number of majority-minority" districts, Roberts wrote, "I would conclude that the courts have no further role to play in rejiggering the district lines" under the Voting Rights Act.
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Roberts' position was even more clear a year later when a group of parents sued over efforts in Seattle and Jefferson County, Kentucky, to ensure diversity in public high schools by considering race in placements. Leading a 5-4 majority, Roberts wrote in 2007 that the way the schools considered race violated the 14th Amendment.
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," the chief justice wrote in a section of the opinion joined by three others.
In 2014, the Supreme Court upheld Michigan's ban on racial preferences in university admissions. In a dissent, Associate Justice Sonia Sotomayor, the high court's first Latina justice, wrote that "race matters" because of the "slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: 'I do not belong here.'"
Roberts responded that it was not far-fetched to conclude that racial preferences might "have the debilitating effect of reinforcing precisely that doubt" and, if so, that such "preferences do more harm than good."
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Not everyone thinks Roberts' vote is necessarily a foregone conclusion. Roberts was clear in his 2007 opinion on the Seattle and Kentucky schools districts that the ruling dealt with high schools, not higher education. And his problem with the public schools' approach, he wrote, was that they used race as the top factor in making decisions.
Harvard and UNC, by contrast, consider race as one of several factors.
Sarah Hinger, an attorney with the American Civil Liberties Union's racial justice program, said Roberts' past explanations are "strong indicators" that he "should not go so far as to reconsider the Supreme Court's precedent" in a landmark 2003 decision, Grutter v. Bollinger.
"The cases that he has heard and considered," she said, "would suggest that there's no reason to reach certainly as far as overruling Grutter in this case."
Grutter and beyond
In Grutter, a 5-4 majority of the Supreme Court in 2003 approved the University of Michigan Law School's use of race-conscious admissions. In an opinion written by Associate Justice Sandra Day O'Connor, the court reasoned that the school had a compelling interest in ensuring a diverse campus and that the way it considered race was limited, using it only as a "plus factor" in an otherwise individualized assessment.
In other words, students don't get into a college based on race alone. But if a college is considering two equally qualified candidates, a minority student might get the edge.
The U.S. Court of Appeals for the 1st Circuit in Boston ruled in 2020 that Harvard permissibly used race under that rubric. Now the anti-affirmative action group, Students for Fair Admissions, wants the Supreme Court to overturn Grutter, arguing that it is inconsistent with the equal protection clause of the 14th Amendment.
The high court could rule broadly, holding universities don't have a compelling interest in diversity at all – a sweeping conclusion that could have widespread impact. Or it could walk a more narrow path: Upholding the importance of diversity but deciding that the way Harvard and University of North Carolina meet that goal is problematic. Roberts, experts say, could have significant influence in deciding how far the court goes.
In the case of University of North Carolina, a public institution, the plaintiffs say the equal protection clause bars consideration of race in college admissions. In the Harvard suit, the group is relying in part on Title VI of the Civil Rights Act of 1964, which prohibits entities that receive federal funding from discriminating on the basis of race.
Americans' views on the issue are somewhat nuanced. Nearly three-quarters of Americans say that gender, race or ethnicity should not be a factor in college admissions, according to a Pew Research Center survey this year. And yet, other polls – including Gallup – have found a majority support affirmative action programs.
Decisions in the cases are expected next year.
This article originally appeared on USA TODAY: John Roberts' writings key in Supreme Court affirmative action cases