Bloomberg Law
Jan. 24, 2022, 8:46 PM

Harvard Race Case Punctuates Supreme Court’s Turn to Right (1)

Greg Stohr
Greg Stohr
Bloomberg News

In agreeing Monday to consider abolishing race-conscious university admissions, the U.S. Supreme Court and its 6-3 Republican-appointed majority took another big step toward transforming the nation’s legal landscape.

Already considering toppling the landmark Roe v. Wade abortion-rights decision, the justices are now taking aim at another set of storied precedents: the rulings that let admissions offices use race to ensure a diverse campus.

And that’s just the start. The current term, which runs through June, is likely to feature rulings expanding Second Amendment gun rights and restricting what the Environmental Protection Agency can do against climate change. And the court on Monday also accepted a case that could narrow the Clean Water Act, giving companies more leeway to pollute and developers more freedom to build.

“They really are in this sort of moment where they can do whatever they like,” said Melissa Murray, a constitutional law professor at New York University. The decision to hear the admissions case suggests that “they’re just checking things off their list and affirmative action will be next.”

Latest: Supreme Court to Consider Banning Race in College Admissions

Driving the change are the three Donald Trump appointees -- Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Already having proven to be reliable conservative votes, they have collectively shown new signs of boldness in recent months, agreeing to take up cases they could easily have turned away and suggesting a readiness to discard precedents.

All three signaled in arguments in December that they were seriously considering overturning Roe, the 1973 ruling that legalized abortion nationwide. They were in the majority in a series of decision allowing enforcement of a Texas law that outlaws abortion after six weeks, even though it can’t be squared with the court’s precedents.

Four Votes

As is customary, the court didn’t say which justices voted to take up the affirmative action appeals, which challenge race-conscious admissions policies at Harvard College and the University of North Carolina.

But given that only four justices are needed to grant review, it would have take only two of the Trump trio to join fellow conservatives Clarence Thomas and Samuel Alito in agreeing to get involved.

The appeals, pressed by an interest group formed to challenge racial preferences, ask the court to overturn the 2003 Grutter v. Bollinger decision, which reaffirmed that universities can use race in admissions to ensure campus diversity. The court is expected to hear the case in the nine-month term that starts in October.

Conservatives say they are cautiously optimistic about the court’s trajectory after decades of frustration with Republican appointees who proved to be moderates or even liberals once on the court. That group includes Justice Anthony Kennedy, who was the court’s most frequent swing vote before his 2018 retirement opened a seat for Kavanaugh. Kennedy backed gay rights, voted to reaffirm Roe and tempered the court’s push for broader gun rights.

“Looking at it from a conservative point of view, there’s a lot of promise there with regard to abortion and affirmative action, and maybe even the Second Amendment, maybe voting rights,” said Curt Levey, president of the legal advocacy group Committee for Justice. “There’s areas where I think conservatives can be hopeful, but we’ve been disappointed too many times for me to declare victory.”

The presence of the Trump appointees has left Chief Justice John Roberts unable to control the pace of the court’s shift to the right. Although Roberts has been skeptical of abortion rights and is a staunch critic of racial preferences, he is more inclined than his fellow conservatives toward an incremental approach that preserves the court’s precedents.

“He perhaps more than any member of the conservative bloc has been concerned about the courts institutional perception, like what the public thinks about the court,” Murray said. “I imagine he can’t be super-excited about just this barrage of hot-button issues popping up on the court’s docket in such a short period of time.”

College Diversity

The decision to take the affirmative action cases sparked concern among supporters that the result will be a sharp decline in the number of Black, Hispanic and Native American students at the nation’s most prestigious universities. Affirmative action is common at selective colleges, though nine states including California and Florida ban race-conscious admissions at public institutions.

“The court’s move today creates a disturbing specter of a decision that could completely deny the importance of racial diversity on college campuses,” said Bob Shireman, deputy undersecretary of the Education Department in the Obama administration. “It would be a giant step backwards on racial progress and healing.”

Columbia University President Lee Bollinger said that “broad public awareness of the unrelenting impact of racism demands a recommitment to affirmative action, not its abandonment.”

Bollinger, formerly the president of the University of Michigan, was deeply involved in the defending that university’s law school policy that was at issue in the 2003 Supreme Court case.

But Edward Blum, president of the interest group challenging the Harvard and North Carolina policies, says the country can’t fix past discrimination with new forms of discrimination.

“The cornerstone of our nation’s civil rights laws is the principle that an individual’s race should not be used to help or harm them in their life’s endeavors,” said Blum, who runs the group Students for Fair Admissions. “We hope the Supreme Court will use these cases to begin the restoration of the colorblind legal covenant that holds together Americans of all races and ethnicities.”

(Updates with reaction on admissions case starting in 15th paragraph.)

--With assistance from Janet Lorin.

To contact the reporter on this story:
Greg Stohr in Washington at

To contact the editors responsible for this story:
Elizabeth Wasserman at

Jon Morgan

© 2022 Bloomberg L.P. All rights reserved. Used with permission.