Supreme Court

Is the Supreme Court Going to Vote Against Affirmative Action?


At the Volokh Conspiracy, George Mason University law professor David Bernstein highlights what may prove to be the most revealing exchange from this week's oral argument over the use of affirmative action in undergraduate admissions by the University of Texas at Austin. In a key exchange between UT lawyer Gregory Garre and the Court, Justice Anthony Kennedy made the following statements:

JUSTICE KENNEDY: So what you're saying is that what counts is race above all.

MR. GARRE: No, Your Honor, what counts is different experiences.

JUSTICE KENNEDY: Well, that's the necessary — that's the necessary response to Justice Alito's question.

MR. GARRE: Well, Your Honor, what we want is different experiences that are going to — that are going to come on campus

JUSTICE KENNEDY: You want underprivileged of a certain race and privileged of a certain race. So that's race.

As I've noted before, Kennedy is a long and consistent critic of the use of racial classifications by the government. Although he has said that "there is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity," Kennedy nonetheless dissented in the 2003 case of Grutter v. Bollinger where the majority found the use of race in admissions by the University of Michigan Law School to be sufficiently modest. So there was already reason to think that Kennedy would vote against UT coming in to this week's case. But if it is indeed true that Kennedy finds the policy now under review to be about "race above all," the University of Texas is in serious trouble.

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  1. No. What they’re going to rule is that racism is taxable and that everyone is a racist.

    1. The KKKommerce Klause

      1. It’s the “everyone’s a racist” part that is fought over, but the great compromise is making it all taxable. Only Thomas dissents, with the liberals concurring, but only to say they think some people are more racist than others.

  2. The most amazing thing about that argument was the exchange where the defendants admitted that the point of the program was to admit more minorities from a privileged background. If Affirmative Action didn’t die in that moment, it never will.

    1. Experiences? If the goal is to admit applicants with varying experiences, why not have the applicants check off from a laundry list of experiences? What the colleges seem to be saying is that, if you have certain superficial physical traits, your experiences in life will have been different.

      Is there some evidence of this?

  3. I’m sure that this has some financial impact on people, so just call it a tax and get it over with.

    1. Never gets old does it?

      1. Thanks to CJ Roberts, it never will. And that statement you just made is subject to the penaltax, John. Oh, and the insurance mandate, too.

  4. Race: the most superficial means of assessing the content of a person’s character.

    1. Generally speaking, yes, but in my neighborhood, not so much.

  5. All those places the Constitution specifically cites race, all for naught.

  6. So, he’s saying that all people that share a race have similar experiences? That sounds kinda racist.

    1. Obama, growing up with a white family and spending a large chunk of his time in Indonesia, understands what it’s like to be a poor black boy in Harlem much better than the poor white boys in Harlem.

      1. And Mookie and Saluki or whatever the little brats name will bring so much “diversity” and understanding of the black experience in America because they grew up in best areas of Chicago and in the White House. So much more understanding of poverty and the American experience than some white kid who grew up in South Boston.

        1. Of course they do. They’re black. To say different is racist.

      2. It was never easy for me. I was born a poor black child. I remember the days, sittin’ on the porch with my family, singin’ and dancin’ down in Mississippi.

        1. Pro’L Dib, I’d still love you if you were the color of a baboon’s ass.

          1. Good Lord! I’ve heard about this–cat juggling! Stop! Stop! Stop it! Stop it! Stop it! Good Father, could there be a God that would let this happen?

          2. Lord loves a working man, don’t trust Whitey, and see a doctor and get rid of it.

        2. Did you become a rich white man like Michael Jackson?

        3. You mean I’m going to stay this color?!?

          1. I think next week I may be able to send more money, as I may have extra work. My friend Patty promised me a blow job.

            1. I know we’ve only known each other four weeks and three days, but to me it seems like nine weeks and five days. The first day seemed like a week and the second day seemed like five days. And the third day seemed like a week again and the fourth day seemed like eight days. And the fifth day you went to see your mother and that seemed just like a day, and then you came back and later on the sixth day, in the evening, when we saw each other, that started seeming like two days, so in the evening it seemed like two days spilling over into the next day and that started seeming like four days, so at the end of the sixth day on into the seventh day, it seemed like a total of five days. And the sixth day seemed like a week and a half. I have it written down, but I can show it to you tomorrow if you want to see it.

              1. “I know we’ve only known each other four weeks and three days…”

                This is one of the greatest scenes ever. How Bernadette Peters managed even one take without cracking up is amazing.

            2. Wait a minute–what’s happening to my special purpose!?

        4. You’re nobody until your name’s in the phone book.

          1. “he hates these cans. Stay away from the cans!”

  7. If they kill affirmative action, the Left is going to have a collective aneurism.

    1. If they kill affirmative action, the Left is going to have a collective aneurism.

      That’s what I thought before the court handed down the Heller decision, and it didn’t happen then. But I also think that affirmative action is more near and dear to their little heart than gun control, so fingers crossed that you’re right.

      1. Affirmative Action is much more near and dear to their heart. They only ever succeeded with gun control in a few places. And most of them had figured out after 2000 and 2004 it was a loser issue anyway. But Affirmative Action is religious faith with these people.

        1. The only thing more sacred is abortion.

          1. Speaking of abortion.. Did you hear Biden in the debate claim to believe that a human is a human AT CONCEPTION and yet he would not want to interfere with a Woman’s right (choice) to kill that human?

            How did Ryan not nail him to the cross on that. He could have won the election right there.

            1. He could have won the election right there.

              What country do you live in?

    2. And they’re aware of that, which is why I’m dubious it will happen. You got Citizens United, which killed the political process as we know it. Be happy with that.

      1. Roberts has proven himself to be the worst sort of moral coward. I wouldn’t be shocked to see him switch to save it. One the other hand, Roberts might kill affirmative action to try and get back into good graces with the Right. Roberts is a guy who was planning his confirmation hearings in law school. He seems to have absolutely no character or moral fortitude or any goals beyond being liked. In short, he is the kind of person who tries to please everyone and winds up being despised by everyone.

  8. But if it is indeed true that Kennedy finds the policy now under review to be about “race above all,” the University of Texas is in serious trouble.

    “Seriously trouble”? More like the U of Texas is likely to be forced to be less racist.

    1. Affirmative Action may be in jeopardy. The University of Texas not so much.

  9. I’m not sure what’s worse, the lack of alt text, or the fact that Supreme Court justices apparently think that which race is benefiting changes the truth of “there is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity”.

    1. Diversity is the worst sort of newspeak. These programs are out to achieve just the opposite. If you admit fairly, a decent number of middle class and poor white kids will get in. And there is nothing rich white people hate more than white people from the lower classes. So what they do is create a race based system where rich minorities get in at the expense of the white trash they so loath. You end up with only the wealthy getting in and call it “diversity”.

      1. Interesting point of view, John. I had never considered that before.

        1. John is pretty accurate with that. I did my undergrad at UVM in the mid-to-late 00’s, and was in the Honor College there. UVM is very high on diversity, to the point that percentage wise, minority enrollment was more than 3 times the state’s minority population.

          There were a lot of minorities in the honors college, typically from places like New Jersey or Manhattan and wanted to go to UVM because they loved their second home in Vermont. This was just like most of the white people there. I am a white guy who grew up in Vermont, on a dairy farm. I was only affording school because I was valedictorian of my high school and I worked 30+ hours a week. The combination of my rural upbringing and lower-middle class status resulted in me being one of the 2-3 most “diverse” (in terms of viewpoint and life experiences) of the 100 people in my honors college class.

          1. Wasn’t John’s point that they are trying to keep people like you, (lower middle class white trash, no offense, I am even more white trash than anybody here) out?

            1. Yes. And my point was that I was the only one out of 100 students there. And only because they were literally required to offer me a scholarship.

    2. That’s foolish Auric. The lack of alt text is always the worst sort of crime against humanity (excepting of course racism).

      1. Lack of an alt test is racism.

        1. It’s racism all the way down.

        2. Alt text is a time honored tradition among my race.

    3. there is no constitutional objection to the goal of considering race as one modest factor

      Damn, evidently I can read better than the justices:
      The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

  10. Kennedy matters only in so much as whether he forces Roberts to switch sides to keep the court from upsetting any apple carts.

  11. As suggested above, they’ll vote against affirmative action as much as they voted against Obamacare, which is now here to stay.

  12. But if it is indeed true that Kennedy finds the policy now under review to be about “race above all,”

    Everbody knows this is “race above all.” It’s only a matter of who’ll admit it.

    Justice Alito’s — if there are ever two applicants where the GPA, the test — the grades, the SA1, SA2, leadership, activities, awards, work experience, community service, family’s economic status, school’s socioeconomic status, family’s responsibility, single-parent home, languages other than English spoken at home, and SAT score relative to school’s average race, if you have a situation where those — all those things were absolutely identical, than the person would be admitted on the bounds of race.

    GENERAL VERRILLI: Not necessarily.


    1. somehow the first part of the quote got left off:

      JUSTICE BREYER: All right, sir. But it is the correct answer to Justice Alito’s

    2. Sigh. It’s Solicitor General, not General.

      1. Glad you cleared that up.

        1. Sometimes the SG is called “General.”

          1. Glad you cleared that up.

  13. If Barack loses and Affirmative Action goes down, shit, it will be the perfect storm of racism. 2013’s an unlucky number.

    1. December 21st will happen before that. There’s still time to prove the old Mayan calendar correct.

      1. In case you aren’t kidding, Google “Baktun.”

  14. Such a ruling (against affirmative action) would probably tip the presidential election in Obama’s favor.

    1. Yeah, cuz all the Blacks will vote for him.

    2. I’m sure the Court will rush this opinion out the door in the next 3 weeks, Tonio. To be sure not to miss the election.

      Seriously, we won’t see this one until next June.

      1. All I can say is “derp.” LOL.

        *^%$#@! calendars, how do they work?

        1. You know, you just said “presidential election” — you didn’t say which year. So there’s a non-zero chance of you being right.

  15. “Is the Supreme Court Going to Vote Against Affirmative Action?”

    No, the unprincipled appeasing cocksuckers will make no clear ruling allowing it or against it.

  16. Is there scientific, objective evidence that “diversity” is beneficial (to the undergraduate experience)?

    1. Accepted wisdom you fool! Come on, get with it, racial diversity = experiential diversity = intellectual diversity, not to mention creating a campus population that resembles the contents of a big, old Crayola box of crayons.

    2. There is evidence that diversity of socioeconomic backgrounds is beneficial.

      Which is precisely what this lawsuit is about–affirmative action is used by UT to “tweak” its admissions to keep poors out, and give preferential admission to rich kids.

    3. The science is settled.

  17. If only the SocGen had the balls to say “Your Honor, once you go black, you can’t go back.”

    1. The wise latina would nod sagely in agreement. She knows. Oh yes, she knows.

  18. State-run universities should be prohibited from considering race in admissions at all, since it violates the equal protection clause of the 14th Amendment.

    Private universities should be able to admit whoever they want, based on whatever criteria they dream up.

    1. That’s too logical and consistent.

  19. Come on dude this makes a lot of sense man, WOw.

  20. “In serious trouble”I think not, unless trouble is defined as being saved from you own immoral behavior by a court decision.

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