Monday, October 31, 2022

Top Ten Observations About the Affirmative Action Oral Arguments

 By Eric Segall

Here are my top ten observations (in no particular order) about the affirmative action oral arguments from Monday.

1) No one seemed to care that the University of North Carolina is only 8% Black in a state where Blacks make up 21% of the population. These facts seem important to me.

2) Justice Gorsuch really, really hates the sport of squash. If you didn't listen, don't ask.

3) No one seems to care that the Massachusetts legislature is only 2% Black while the state is 9% Black. These facts seem important to me.

4) The conservative Justices asked almost no questions about the original meaning of either the 14th Amendment or Title VI. I think we all know why.

5) The conservative Justices seemed obsessed about the statement by Justice O'Connor in Grutter v. Bollinger that she expected affirmative action to not be needed in 25 years. At my law school a few years ago, she said unequivocally she meant that sentence as aspirational and that too much has been made of it. All smart people knew this already.

6) Justice Jackson may already be the best questioner on the Court.

7) The liberal justices made convincing arguments that there are no reasonable race-neutral alternatives to taking race into account in university admissions. All smart people knew this already.

8) There was almost no discussion of stare decisis despite the fact that one of the questions presented was whether Grutter should be overruled. I think we all know what that means.

9) For some reason, Justice Kavanaugh asked why Harvard does not have a box where people can show their religion. I guess the reason might be that this Court feels religious discrimination is more of a problem than racial discrimination in today's America. That belief is insanely wrong, 

10) None of the Justices did a good job of establishing that institutional racism is still a major problem in America and that is one reason affirmative action is still badly needed. I detailed this racism here.

Bonus Point: Despite five hours of give and take, we all know the Court is going to end affirmative action. When they do so, the opinion will be mostly policy despite the Court telling us last term in the abortion and gun cases that policy concerns should be irrelevant to constitutional interpretation. In other words, text and history for me but not for thee.