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Supreme Court Decouples Harvard, UNC Affirmative Action Cases (2)

July 22, 2022, 7:31 PMUpdated: July 22, 2022, 8:16 PM

The Supreme Court separated challenges to affirmative action programs at Harvard and the University of North Carolina, paving the way for Justice Ketanji Brown Jackson’s participation.

Jackson had signaled at her confirmation hearing earlier this year that she would recuse herself from the case involving Harvard, as she recently completed a six-year stint on the school’s board of overseers. During her tenure, Harvard’s affirmative action program was a hotly debated issue among the board and the school’s alumni.

Though not technically required to do so, justices typically recuse due to family ties with the parties or lawyers, financial interests, or conflicts with their previous work.

The Harvard and North Carolina cases had previously been consolidated for consideration together, since challengers in both claim that the schools’ admissions programs discriminate against Asian American applicants. The challengers also ask the justice to reconsider earlier rulings allowing for limited use of race in higher education admissions.

The move means Jackson, who also attended Harvard undergraduate and law schools, can participate in the case out of North Carolina. Leaving the two cases together could have made it impossible for the court to decide the case, if the remaining justices split 4-4.

The Supreme Court intends to hear the case during the term that begins in October but hasn’t yet scheduled arguments.

The issue of Supreme Court recusals has gotten renewed attention after text messages between Justice Clarence Thomas’ wife, Virginia “Ginni” Thomas, and then-White House chief of staff Mark Meadows surfaced regarding attempts to overturn the 2020 presidential election. Prior to those text messages becoming public, Thomas had participated in a case about whether other communications to Meadows were protected by presidential privilege.

(Updates with more information about Supreme Court recusals starting in paragraph three.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com