The Supreme Court will likely ban affirmative action in college admissions, legal experts say

The Supreme Court will likely ban affirmative action in college admissions, legal experts say

After lengthy and heated oral arguments on Monday, Supreme Court experts say that judges are likely to prevent the use of affirmative action in university admissions.

“This was a full-contact oral argument for both the lawyers and the judges,” said George Washington University law professor and Fox News contributor Jonathan Turley. “The challengers clearly had a better day in front of the court.”

The court heard two similar cases on the use of race in college admissions at Harvard University and the University of North Carolina in a nearly five-hour session. An activist group called Students for Fair Admission brought both cases, and seemed to have more justice on their side.

“Chief Justice Roberts at points seemed to lose patience with Harvard attorney Seth Waxman because of his combative style in oral argument,” Turley added in an interview with Fox News Digital. “Waxman spoke about a number of justices who asked questions and did not seem to respond to direct questions from the justices.”

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Chief Justice John Roberts launched a "fan" to Harvard lawyer Seth Waxman on Monday, Jonathan Turley said.

Chief Justice John Roberts threw a “haymaker” at Harvard lawyer Seth Waxman on Monday, Jonathan Turley said.
(Julia Nikhinson-Pool/Getty Images)

In perhaps the most eloquent moments of the arguments, Harvard attorney Seth Waxman got into testy exchanges with Justice Samuel Alito and Chief Justice John Roberts in a couple of minutes.

Alito pressed Waxman because Asian American students routinely receive lower personal scores on their applications than other races. Waxman talked around the questions of justice, causing Alito to be frustrated with the lawyer.

“I have yet to hear any explanation for the disparity between the personal scores that are given to Asians,” Alito said.

Waxman then went into a tissue back and forth with Roberts. The justice asked why Waxman downplayed race as a factor in admissions decisions, when, according to Roberts, it should have had some impact, otherwise it would not have been included.

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Waxman admitted that the race was decisive “for some highly qualified candidates”, as “being… an oboe in a year in which the Harvard-Radcliffe Orchestra needs an oboe”.

“We’re not fighting a civil war over oboe players,” Roberts replied. “We fought a civil war to eliminate racial discrimination.”

Harvard lawyer Seth Waxman "combative" style of oral arguments appeared to frustrate some justices.

The “combative” style of oral arguments of Harvard lawyer Seth Waxman seemed to frustrate some justices.
(Photo by Michael Fein/Bloomberg via Getty Images)

Turley called that moment, “the haymaker of the argument.”

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“With that frustrated retort to a Harvard lawyer’s attempt to justify the use of race higher education admissions, Chief Justice Roberts has illuminated the false paradoxes at the heart of affirmative action,” Manhattan Institute director of constitutional studies Ilya Shapiro also told Fox News Digital.

“On the one hand, race is just one of many factors that colleges consider under a ‘holistic’ approach and never determinative (except in rare cases such as the orchestra’s need for an oboe),” Shapiro added. “On the other hand, if race cannot be used, the number of black students will go down.”

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“Fortunately, Chief Justice Roberts seems to be the deciding vote in these cases, and is on the side of legal equality rather than nebulous considerations of ‘fairness’ and racial divides,” Shapiro added. “Come June, the Court will help promote national unity and equal opportunity against racialist balkanizers.”

Judicial Crisis President Carrie Severino also said she hopes the court will block future uses of affirmative action.

Fox News contributor Jonathan Turley reported that Justices Ketanji Brown Jackson and Sonia Sotomayor were "He looked indistinguishable from the lawyers" in the Supreme Court on Monday.

Fox News contributor Jonathan Turley said Justices Ketanji Brown Jackson and Sonia Sotomayor were “looking indistinguishable from lawyers” on the Supreme Court on Monday.
(AP Photo/Andrew Harnik)

“The use of racial preferences in education has been an unsuccessful experiment for 44 years,” Severino said. “The Court’s argument [Monday] has shown that it is time to return to the constitutional norm of color blindness.”

Turley said that the 6-3 majority of conservative justices on the court makes it seem much more likely that the court will issue a decisive decision for Students for Fair Admission. One of its members could side with the liberal justices or write a separate concurring opinion, and there would still be a majority against affirmative action.

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Justice Clarence Thomas was perhaps the furthest to the right in his examination of university lawyers, Turley also noted, often questioning the value of diversity in education in the first place. Meanwhile, the liberal justices seemed firmly on the side of maintaining affirmative action.

Justices Sonia Sotomayor and Ketanji Brown Jackson, Turley said, “seem indistinguishable from lawyers.”

“They often interject affirmative statements in favor of using race as a criterion,” Turley added.

The cases are likely to be decided at the end of the court’s current term in late June or early July 2023. Jackson, who was a member of the court. Harvard Board of Overseers before his court date, he withdrew from the Harvard case.



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