Advisory Opinions - Harvard Loses Affirmative Action Case

Episode Date: June 29, 2023

In a contentious decision, the Supreme Court shuts down affirmative action in universities... or does it? How impactful, really, is the decision in Students for Fair Admissions v. Harvard? It's complicated. After weeks (months? Years?) of anxious anticipation, Sarah and David dig into this term's blockbuster decision: -Is this a big deal? -They justices can't agree about the universe of facts -Harvard's response -The arbitrariness of check boxes -A different kind of affirmative action -Justice Thomas' concurrence (and legacy) -Justice Sotomayor's dissent -...paved with good intentions. -Wonder Bread Alito Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to an emergency podcast for advisory opinions. The Supreme Court finally released the decision in the Harvard and North Carolina affirmative action cases. We will talk about it. They also released the case in groff that religious accommodation case we will get to it i'm sarah isger that's david french and this is advisory

opinions so david just a few can we do some housekeeping for sure yeah one there was a story that came out today that's making the rounds about that the uh in 303 Creative, this is the case about whether a website designer needs to make custom wedding websites over her own religious objections to LGBTQ weddings. In part of that lawsuit, she claimed she'd gotten a request for a wedding website. An intrepid reporter actually made a phone call to check in with that guy,

see what he's thinking on the eve of the decision. And he was like, what are you talking about? I'm a straight man. I've been married to a woman for years. I have kids. Obviously that wasn't me. I've asked Alliance Defending Freedom, who are the lawyers who actually signed

the pleadings in that case, for comment and update when I get it, hopefully by tomorrow when we get the decision. We'll wrap that into our 303 creative case. Until then, I'm actually going to just even skip all the details. We're just going to put that all to tomorrow, but I'm aware of it. Second housekeeping detail. Article three of the Constitution says the judicial branch of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and

establish. This was mentioned to me a few times by listeners when I suggested that perhaps if a Supreme Court justice recused and we encouraged more recusals, which I'm not in favor of because of the general litigation games that can be played with recusals, that we do sort of a roulette of chief judges from the circuits. And people were like, wait, y'all, that unconstitutional. I see your point. It might be. I think it's easily fixed when you confirm a circuit judge. You could maybe perhaps add something about this designation or perhaps when they become chief judge. I don't know. I don't have a perfect fix to this. That idea itself was from a very smart lawyer who sent it in, but okay, I get it.

There's a problem. So then I'm back to disfavoring recusals. I don't mind. Yeah, well, and one thing I would say about this is there's a lot of constitutional deference to the branches of government governing themselves. So huge constitutional deference if the branches of government governing themselves. So huge constitutional deference if the House of Representatives wants to toss somebody out.

In spite of the fact that they are designated to be elected representatives, but they can be tossed out by the House. So there's a lot of constitutional deference there. There's constitutional deference in how the Supreme Court drafts its own rules to govern itself. So I'm not giving up on your idea yet, Sarah. I had never heard it before and I like it and I'm sticking to it. I also would say there's a difference between

if it said shall be vested in nine Supreme Court justices, that would be kind of a deal breaker. But one Supreme Court without specifying what makes up that court again i think could be pretty easily fixed in the confirmation process for circuit judges along with your deference point david last housekeeping point and uh i experienced my first pregnancy privilege yesterday david and, this is my second pregnancy, but my first public one because COVID hit by the time that you could tell I was pregnant. And then I didn't get to leave the house until, well, I guess I did leave the house in June for the pregnancy. And then they just sent me right back home. So I was on the train from New York to DC yesterday. And literally everyone on the train car was like,

how can we help you? Where would you like to sit? Well, isn't that nice? Well, at first I sort of forgot I was pregnant. I was like, wow, all these New Yorkers just so nice all of a sudden. And then one guy kind of gestured towards my midsection. I was like, oh, right. Yeah, I'm fat. Got it. Well, public decency still exists. And in New York of all places. Yeah all places yeah absolutely no that's encouraging i'm glad to hear that the mores of twitter have not completely infected the rest of america uh it was quite lovely if weird and like disconcerting at the same time okay harvard case enough housekeeping let's get it. David, it was a 6-3 decision. You have the chief justice writing.

You've then got concurrences by Justice Thomas. Very long concurrence. Yep. Justice Gorsuch. Interesting concurrence on the statutory side of things. Justice Kavanaugh. No, no, we're not overturning precedent. And then you've got the main dissent by Justice Sotomayor, as well as another dissent by Justice

Jackson, only in that North Carolina case. David, this looks remarkably as was expected. as was expected yes i am surprised how unsurprising this is um i was ready for somewhat of a surprise after the alabama and indian child welfare act cases and it didn't occur and i i think there's a good reason why we explain why we can articulate why it didn't occur. But the bottom line here, Sarah, is that if you support race-based affirmative action, this was not the case you wanted at the Supreme Court. And the opinion in the case made that, and the concurrences made that really, really clear. Because what happened in essence is that harvard said okay

we've got a tradition here that overwhelmingly benefits wealthy white people we're not going to disturb that true tradition it's going to result in a class that doesn't exactly look like America. So we're going to fix that by engaging in invidious discrimination primarily against Asian Americans, a historically disadvantaged minority. So we're going to cling to this legacy admissions world that disproportionately benefits wealthier white people. And to make up for the lack of diversity, we're going to engage in invidious discrimination. That's not the posture you want to have when you go into the Supreme Court of the United States. And quite frankly, Sarah, after 45 years since the Bakke decision in 1978, if that's the best that the university system can do, if this is what 45 years of race conscious affirmative action ends up looking like, then good riddance to it. Because

it looks an awful lot like invidious discrimination and specifically invidious discrimination against a historically disadvantaged minority that has faced race-targeted immigration restrictions, race-targeted segregation, race-targeted internment during World War II. I mean, come on, what are we doing here? All right. So 6-3, they strike down Harvard and North Carolina's admissions programs. But the headlines have been a little mixed. It's ranged from Supreme Court upholds Bakke and Grutter, the two previous main precedents on affirmative action,

to Supreme Court limits use of affirmative action. I kind of think that one's the most accurate myself, but I want to turn this over to you. To Supreme Court overturns affirmative action with the implication that, you know, look, they can say they didn't overturn Bakke and Grutter all they want, but they absolutely did.

Right. Let's just stick on this for a second. How narrow is this decision? How big is this decision what do you think it's big but it's big in a way that you might not be able to let me let me put it this way it's big full stop at the same time it is not a it is not a to work a revolution in college admissions so let me let me put it this like this what essentially what has happened is the supreme court said if you're going to you cannot use race as a means of achieving diversity you can use race if you've been in certain specific ways so

if you've been subjected to specific ways, so if you've been subjected to specific examples of racial discrimination and you've overcome that, well, you can articulate that in an application for admission and have that considered, and have that considered as a plus factor that you've overcome specific discrimination. If you are a victim of discrimination, there can be a race-conscious remedy for you as a victim of discrimination there can be a race conscious remedy for you as a victim of discrimination outright victim of discrimination discrimination

or you can change the criteria with which you you can have affirmative action but instead of race based it can be class based in other words people with lower degrees of household wealth for example can receive a tip or an advantage. And so in many different ways, there are many different ways for universities to achieve diverse classes. And so it's not as if you go to Harvard, where they traditionally considered race as a factor versus going to Berkeley, where they're banned from considering race as a factor, that you would say, well, Harvard's diverse and berkeley is super

white no that's not the case berkeley and university of california system schools are quite diverse even though they're not permitted and have not been permitted by state law to use race in their affirmative action calculus and so you're still going to see diverse universities it's just going to be diversity based on different criteria and many times those different criteria will end up having a very similar effect as race based affirmative action but it won't be race-based affirmative action um and and i think that so that's the top big part of it is you just can't do this race-based affirmative action.

But the subhead of that is that does not mean that universities have no flexibility to create diversity. They still have an enormous amount of flexibility to create diversity. It just can't use race as the proxy. It can't use race as the criteria for adjusting class composition. Interesting. I don't know that I agree with all of that. What part do you disagree with and why are you wrong? Yeah, yeah. So let me walk through. I want to walk through sort of the best arguments I've

heard that are totally contradictory and yet all of which are at least supported in part in the majority's decision. And I'm including the concurrences in that as well. Okay. Right. So argument number one, this was an incredibly narrow decision. It upholds Grutter. It upholds Bakke.

What it does is say that Harvard and UNC violated Grutter and Bakke. So Bakke and Grutter, by and large, say that you use strict scrutiny. There is a compelling interest in having a racially mixed class of students. You just can't use a quota system. It has to be a holistic application process where you look at the individual student and see whether they're contributing said diversity, including racial diversity, to your class. And what you can't do, and this is now taking more from Grutter, is the quota system, because the quota system by definition

then stereotypes someone that just because their skin is a certain color, they've had X experience that you think they should have had because of their skin color. And so what the chief justice has said is Harvard and UNC violated Grutter. They may not call it a quota system like they did in Bakke, which was a set aside for the medical school, but it was just because they hid it behind fancy language. The record is quite clear. The record's quite clear, both in terms of what they were saying to each other in the admissions office, and in terms of the actual numbers that

we know of, where every single year they have the exact same percentage of every race. That's a quota system. It violates Grutter. Your admissions policy, however well-intentioned, and maybe it wasn't well-intentioned, violates our precedent Okay. So that's, see, this was a very narrow decision. I think there's plenty of language to support that in the chief justice's opinion. Well, let me give you the next one, which is, wait a second. What Grutter and Bakke actually said was that the reason that these admissions policies could satisfy strict scrutiny is because there was a compelling interest in having diverse educational experiences. And you're talking about Grutter and Bakke a lot, but what about Fisher too? That's the

University of Texas case that was decided after Grutter, where they upheld Texas's holistic admissions policy that clearly took into account race and was sort of the next test after Grutter. Harvard and North Carolina look a whole lot like Fisher. So why was Fisher upheld and this not? Clearly, we did just do something pretty dramatic to the use of race in admissions. I think there's something to be said for that because the chief justice very clearly says that diversity in education does not satisfy strict scrutiny as a compelling interest anymore, which is pretty much what Grutter and Bakke had said. Then you have Kavanaugh's opinion, the concurrence, where he's listing all of the ways in which this is actually upholding Grutter.

You have Thomas's concurrence where he's like, I would overturn Grutter, but fine, whatever y'all want to do. The point is, I think you'd kind of did overturn Grutter and I'll just sit back and pretend we didn't if that's what you really want. And he, you know, and I hope we'll spend some more time on Thomas's concurrence in general, because Thomas walks through the history of the 14th Amendment

in his eyes, whereas you're going to see the history of the 14th Amendment very differently through the dissent's eyes. And in a way where, David, I would say that they're not even agreeing on some of the basic universe of facts which you don't often see in a supreme court opinion where like they're just in different universes entirely it's not like well here's this and I disagree on this part and I disagree on this part it's like nope two different worlds being described in Thomas and sotomayor and jackson um and then gorsich in his is like look um good news bad news even if this didn't violate the equal protection clause which it does it definitely violates title six of the civil rights uh act and let me tell you the reasons why and oh also let's get into some of what this record actually

said these schools say they're interested in diversity that's interesting because they're using check boxes on race that are somewhere between meaningless and gross um meaningless in the sense that they don't differentiate between the descendant of a slave who might have actually been forced to build the school in question versus very wealthy Nigerians. I don't know why everyone keeps picking on the Nigerians, but so sorry to the country of Nigeria. And he mentions, you know, and Asians on the other hand, again, one checkbox are 60% of the world's population as defined by that checkbox. So someone who's great grandparents were in Japanese internment camps is checking the same box as someone from Iraq is checking the same box as

someone who is Filipino descent, by the way. It's like, what in the world are these checkboxes? They're so pointless and like get to the hispanic and latino thing and then what and this is where i'm getting to for that third bucket right the it's a super narrow decision uh they violated grutter and gratz it's actually a much broader decision they did have a rule grutter they just didn't say it and then my third bucket is these admissions counselors were incredibly lazy, as all admissions counselors have been, because they've been able to use these rough, gross checkboxes.

and that, in fact, we told them to use holistic admissions processes. They've been half-assing it since then. And by God, we're going to hold them to it because you can look at this record and see what they actually think about all of this. And it's awful. I mean, we've talked about the record before in this case, David, but Justice Gorsuch points out some of the grosser comments in his concurrence, you know, where they say, oh, he's got good grades for a Native American kid. Or, you know, oh, look at this SAT score and all these activities. Oh, wow. Great. Yeah, but it's an Asian kid. Too bad.

bad. Where they're just using race as these, again, incredibly blunt instruments, but they're doing it to be lazy because they're going to fulfill this basically quota system that they have. And so my third one is somewhere in between the two, which is, hey, admissions offices, use race. You just can't do it with these checkboxes because frankly, it's turned you into monsters who are absolutely discriminating against people even the people who you think you're helping the way you're talking about them the way you're treating them is um is disgusting but also in result what's happening is that you're just accepting the rich kids into harvard and then touting the Benetton ad version of this, where like, well, yeah, but it's a rich kid with different skin color,

patting yourselves on the back. Obviously, you can tell from my tone of voice, I kind of like the third version the best, which is just the do better. None of the opinions actually mentioned the concept that was brought up multiple times during the oral argument that you could still ask, are you the descendant of American slaves? Clearly, that would have race involved in it. But according to what I'm reading here, 237 pages of it, I don't see any problem with that checkbox, at least for a majority of the court. Now, we didn't hear from Barrett and Alito, for instance. But David, do you think that survives? So I guess I'm confused because I think your third option is exactly what I just said. Well, what I heard from you is they'd have to write an essay about how they overcame discrimination in their school or something like that have to write an essay about how they overcame discrimination

in their school or something like that instead of writing their essay about how they won the robotics competition and that like i i don't think that that's necessarily required i think schools can do all sorts of other holistic um admissions processes that take into account race they just can't use check boxes and quotas uh see that's i don't see that in the opinion so if you're talking about just just race like just race in other words unrelated to any other life experience in other words not because of my race i faced discrimination or i you know i face this horrible incident with a police officer or because of my race uh growing up in this part of the country i face continual mockery or race racial epithets from my classmates if it's just just race with nothing else as a plus or a minus i think that's

out in this opinion it's it's just hard for me to see a justification for saying race, regardless of any experience connected to the race, is going to be able to be a plus or a minus. I have a hard time seeing that as opposed to saying, look, for sure, race can be considered as a factor in admissions if race was a factor that it can be articulated in you know in a specific way in my experience growing up or my experience in academics or you name it which is not saying that's sort of under the rubric of any person, regardless of race, who has faced adversity or challenges for whatever reason. And sometimes it could be related to race.

Sometimes it could be you're as white as the whitest person alive, but you grew up in a double wide with no dad and meth addicted mom. And that's going to be a factor that can be included. But it's just hard for me to see that independent of any other thing what about my example about the descendants of slaves that's clearly a race-based category but descendants of slaves there's an awful lot of black americans who are not descendants of slaves or descendants of african immigrants or. And so that is not a specifically race-based distinction. Descendants of slaves, it is based on status of the fact of slavery,

which was absolutely a race-based institution in the United States. But in theory, if you had a Native American who was enslaved, they could benefit from that as well. And if you're a black American who was enslaved. They could benefit from that as well. And if you're a black and you're not a disabled... But my point is, I mean, this was brought up in the oral... Yeah, this was brought up in the oral argument.

And when it was asked of the petitioner, the people who wanted to overturn these admissions policies, he would say, yeah, of course that's a race-based distinction. Just because it doesn't include everyone of that race it certainly excludes people who aren't of that race so you know maybe we're saying the same thing yeah um i think you could still have a checkbox for that even like i don't think you have to mention that in your essay for descendants of slaves yeah yeah but that's not but again the issue is that that the key issue here is the status of descendants of slaves not the key issue is is not skin color so that you have a whole category of people who are black or brown or you know whatever race

who are not part of that community and so it's not a race-based distinction specifically. I hear you. I think it both is and isn't. I think, for instance, if you said, we're not going to hire anyone who's the descendant of slaves, we would say that was a race-based distinction. It was racially discriminatory. We wouldn't say, well, they're happy to hire other people

who aren't descendants of slaves who happen to also be black. We'd say like, no, obviously you can't exclude someone because that is going to be excluding people of a certain race, even if it doesn't exclude all of those people of a certain race. Can I give you my like really extreme thing that I think, I don't know, if I were some school, maybe I'd be interested in trying it. I don't know, if I were some school, maybe I'd be interested in trying it. A lot of the emphasis here was on, again, the bluntness and arbitrariness of these, what is it, seven checkboxes? I can't count. I think it'd be very interesting if a school actually did affirmative action the right way and actually said, like there are specific things we think

will bring diverse perspectives to our school. Please check here. If one of your parents did not attend college, please check here. If you're the descendants of African slaves, please check here. If your parents immigrated from one of these 15 extremely impoverished countries in the last 20 years you know so like

you were some of that's going to be race-based some of it's not going to be race-based um i don't know i think a school could do that based on this opinion or at least make a argument that they weren't violating this opinion and trying it so i agree with you i agree with you but none of that is saying while it has race disproportionate effect it is race blind as a criterion and so in other words so what this policy leaves in effect is is in my view if you have standards that are not specifically race-based but still have race-disproportionate outcomes, you're going to be in good shape so long as you're not engaging in, you're not using the race neutrality with race-disproportionate outcomes as a cover for invidious discrimination.

That's the Thomasomas jefferson case where you're sort of saying well we really need fewer asians but we can't say fewer asians so therefore we're gonna you know that would be you know one of your arguments against a company that said we're gonna hire everyone is eligible to work for us except descendants of American slaves, you would say, whoa, wait a minute. This is a fate that appears to be something that is not directly related to race, but is absolutely disguised in bideous discrimination. Can I give you the even more extreme example?

Yeah. I'm going to take it one step further. The school says, all right, look, yeah, this Asian category that covers 60 of the world's population we get it that's not gonna work but in truth we would love to have more iraqi students who we think do have a specific experience especially given the war you know of the last 20 years um and frankly because we've just been using this blunt asian checkbox we're getting too many students of chinese descent so yeah we're gonna ask for specific uh you know whatever you want

to call it national origin blah blah blah um and we're gonna use like really narrowly tailored to make a diverse body it's not that we're gonna have the same percentage of iraqi students every year or even of chinese students but we do want to make sure that we. It's not that we're going to have the same percentage of Iraqi students every year or even of Chinese students, but we do want to make sure that we aren't getting, you know, of our 20% of Asian students, we don't want all of them to be Chinese. We want to make sure that they're in fact covering more of the waterfront.

What do you think of that? And by the way, my stated purpose is both to increase diversity at the school and the educational experience and also to ameliorate past discrimination, which is why we're really looking for students of those Japanese internment camps or students of Iraqi descent. You know, I'm going to list off some that we think are particularly have faced past discrimination in the educational process in the United States.

Both. discrimination in the educational process in the united states both again i think if you're tying something to a past descendants of slaves descendants of those interned in internment camps children of iraqi and afghan interpreters you know if you're if you're talking about categories where you can say here is a specific historical phenomenon, whether it's relatively recent past or further in the past or quite contemporary, like children of Afghan and Iraqi interpreters that you can tie that beyond just skin color.

If you say, well, we're going to have anyone who's of Iraqi descent. Well, okay. Mom and dad are, are heart surgeons in Connecticut. skin color if you say well we're going to have anyone who's of Iraqi descent well okay mom and dad are are heart surgeons in Connecticut and so therefore there's our Iraqi checkbox um no I guess that is kind of my question like I part of the majority here was saying that those

checkboxes were too blunt they They were over and under inclusive. I wonder if you just made more narrow checkboxes, whether you could argue that you fit the narrow tailoring, you'd fix your compelling purpose problem. Yep, you're going to get rid of the legacies. So to walk through some of the other complaints, and again, this is specifically taking from the Gorsuch concurrence, he walks through the checkbox as being too blunt, not narrowly tailored. And the fact that, what, 5% of the applicants and 30% of the admissions at Harvard are either legacies or athletes,

which are not just disproportionately white. That undersells how basically white students have been getting affirmative action, and they still will. Yeah. Oh, yeah. I think even narrow check boxes that are explicitly racial are going to be out that if they are on their face racial in other words um or on their face national origin yeah uh every every single every single person who is from i'll make it middle eastern

yeah whatever you want yeah race or national origin there's ways to come up with both of them but i make them really narrow i i have a hard time seeing them survive this i think if you you tie it to specific yeah if you tie something to specific and and again, we're not deciding this in a vacuum, right? Because we just had the Alabama case where you tied a race-conscious remedy to a specific history in that state, but that does not mean that a race-conscious remedy is going to be okay in all states. David, okay, wait. So then my last follow-up on this one.

Okay. Harvard has a specific history of discriminating against Jewish students. I get that everything's fine now. So, you know, you have to almost kind of ignore that part. But what if they just said, yeah, we're going to actually now have a plus up

for Jewish students to make up for the discrimination that is explicit in our admissions policy back for their grandparents. See, this is interesting because I think if you can, because if you actually read carefully when it's talking about remedying a past history of discrimination, a lot of the arguments from these schools are societal discrimination. Correct. Not the specific institution.

Which is weird because the specific institutions have plenty of history of racial discrimination. Plenty. Right. And so I do think if you had something that was much more along the lines of Alabama and voting rights, and it was instead of Harvard and how it discriminated in its admissions, it specifically did, that might get more interesting. That might be an exception to my no checkbox, checkbox, but it would be a checkbox based on the specific actions of the school and the community the school specifically harmed. But look, in reality, like you said, what I think most schools are going to do

is move to something more like a California, Michigan, Texas model where, and this could be the very best outcome in some respects. Look, I actually think diversity in education is important and as we've talked about before i don't think socioeconomic status is a substitute for one's experience as a racial minority in this country we don't want schools where like you fill all of your rich kids with white people and all of your poor kids with not white people and say look diversity that's actually not diverse either lots of poor white kids with not white people and say, look, diversity, that's actually not diverse either. Lots of poor white kids in the country, lots of middle-class and wealthy non-white kids in the country, actual diversity and educational experience can't only be socioeconomic. And so

that's actually the last thing I would sort of want all these schools to do, which would again, be the next laziest option that they could pick. So some of them will, no doubt. But you get rid of all the legacy admissions and the athletics, getting in for athletic competitions that are not necessary. I'm not saying they're not great, but they're not necessary. And then, of course, you have the Dean's List. So there are these three categories. Legacy, which they argue helps their financial bottom line. For some schools, no doubt, there is some real difference on the margin for that. For Harvard, I think we can all agree they're doing fine.

They could end that. The athletic one. And then the Dean's List, which is the nice word for kids of famous people cool cool yep and they could change all of that not even get rid of it just make it less if they halved the plus up that those kids get uh they would basically fix their problem which is incredible and so disheartening um so that's one reality that could come out of this. Yeah, no, I agree with you completely. And one of those stats that was really telling

was recruited athletes are 1% of the applicant pool and 10% of the student body. Yeah, and they're not football players. No. I mean, and even if they were, but like they're also not. This is where you get to the varsity blues problem bingo it's the sailing club and the fencing club and the squash team and the

racquetball team again not diminishing the importance of those sports but it's one thing for the school to say that actually a lot of our income derives from the football team or something like that but like really the squash team team? You're going to turn down the kid who worked really hard at a disadvantaged school and has faced discrimination and all sorts of stuff for the racquetball player? Or the fencer? And also, let's keep in mind who can really afford to invest their kid in fencing and sailing and rowing? And this is, these are not your sandlot sports, right? And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family?

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on the Thomas concurrent specifically and how it relates to the dissents. I want to get your views on that. And then I'm just going to... we got it to the military footnote for sure. A couple more things to go. Okay. I want to read you the end of Justice Thomas's concurrence because I think it will go down as one of those parts of his legacy that will be relevant. The great failure of this country was slavery and its progeny.

And the tragic failure of this court was its misinterpretation of the reconstruction amendments as Justice Harlan predicted in Plessy. We should not repeat this mistake merely because we think, as our predecessors thought, the present arrangements are superior to the Constitution. The court's opinion rightly makes clear that Grutter is, for all intents and purposes, overruled. And it seems that universities admissions policies for what they are, rudderless race-based preferences designed to ensure a particular racial mix in their entering class.

Those policies fly in the face of our colorblind constitution and our nation's equality ideal. In short, they are plainly and boldly unconstitutional. While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold out enduring hope that this country will live up

to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States, that all men are created equal, are equal citizens, and must be treated equally before the law. That's good stuff. No notes. 10 out of 10. 10 out of 10, no notes. But you compare that to Justice Sotomayor's version. And I read that from Justice Thomas, and I hear a lot of truth in that. But I have to say, I read Justice Sotomayor's opinion, and there's a lot of truth in that too, which is that, as I mentioned before, the history, the immediate aftermath history of the 14th Amendment was not always simply limited to

those who had been held in slavery, but in fact was race-based at times. Their views of the Constitution, he describes it as colorblind. She says it's never been colorblind. The country's never been colorblind and certainly isn't colorblind. And then even the language difference, right? He talks about equality. She talks about equity. It really is. It felt like such a modern fight that we're having in our political arguments. It's actually kind of rare to see that play out in the language of Supreme Court opinions. And it was notable to me, David.

Yes, I know. And look, I think, you know, in Justice Jackson's dissent also quite clearly laid out the consequences of centuries of racial oppression. I understand, you know, the one part I would say nine point five out of ten for for for Thomas. I do have a slight note. for Thomas, I do have a slight note. I do completely agree that when the nation has engaged in racial discrimination, there is going to be a need for remediation. And specifically to the specific victims of that racial discrimination. And there are circumstances where the Supreme spring court as we've just articulated uh in in commentary this term indian child welfare act in alabama where the colorblind it wasn't this wasn't a purely colorblind situation because there was a very explicitly racial harm inflicted

in many cases by the very institutions or by the very state, for example, Alabama, that was seeking newfound colorblindness, right? And so I do think that there are circumstances where to remedy color-focused discrimination, there has to be a remedy that matches in the discrimination that was inflicted. But again, Sarah, I don't want to belabor this point too much, but that's not what the universities were arguing over. This wasn't what was at issue in the case. The issue in the case was not Harvard inflicted racial harm and has therefore put together a policy designed to ameliorate the racial harm that Harvard inflicted. It was diversity is great. It was diversity is great. And one way we're going to achieve it is through just a kind of a blunt force racial analysis of what diversity is and isn't. that didn't exist because the case wasn't about historical harm inflicted by these institutions that just wasn't in the case and so diving into that was sort of diving into an argument that

wasn't the argument before the court in key ways and indeed the majority the chief justice but also each of the concurrences is going to take issue with the dissent in saying like, look, you're telling a great story, but it's not an issue in this case, or you're misrepresenting, you know, for instance, there's the part where they point out that the dissent keeps quoting the dissents or the concurrences in Bakke, but not actually the majority opinion in saying what Bakke held. And it's like, look, here's how I know you're not telling the whole truth. You aren't actually quoting the majority. Here's another footnote one from the Chief Justice's

opinion. Justice Jackson attempts to minimize the role that race plays in UNC's admissions process by noting that the school accepted a lower percentage of the most academically excellent in-state Black candidates, 65 out of 67, which would be 97%. Then it did similarly situation Asian applicants, that is 118 out of, sorry, 1,118 out of 1, 1118 out of 1139 98 it is not clear how the rejection of just two black applicants over five years could be indicative of a genuinely holistic admissions process as justice jackson contends indeed it cannot be as the overall acceptance rate of academically excellent applicants to unc illustrates full well over Over 80% of all Black applicants in the top academic decile were admitted. Under 70% of White and Asian applicants in that decile were admitted. In the second highest academic decile, 83% of Black applicants admitted, 58% of White and 47% of Asian applicants admitted. In the third

highest decile, 77% of Black applicants, 48% of White applicants, 34% of Asian applicants admitted. In the third highest decile, 77% of Black applicants, 48% of white applicants, 34% of Asian applicants. The dissent does not dispute the accuracy of these figures, and its contention that the white and Asian students receive a diversity plus in UNC's race-based admissions system blinks reality. The same is true at Harvard. African-American student in the fourth lowest academic decile has a higher chance of admission, 12.8%, than an Asian student in the top decile, 12.7%. I mean, that's just...

And, you know, keep circling back to this because this is how we started this really is what what harvard really did was put together a systemic uh an admission system that was systemically discriminated against asian applicants like that's what it did that's what it did and so this was not some sort of benevolent system where race could only be a plus for somebody. That is not what this was. This was a system that Harvard might have benevolent intentions, but it was experienced by Asian applicants in a quite malevolent way. And I think that's one of the absolute fundamental difficulties here. And that's what separates this. And it's interesting, Sarah, if you look back, so what was the Bakke case? The Bakke case was University of California, UC system.

What is Harvard? Harvard's in Massachusetts. I do wonder how this would have developed differently if this was all of this case law was sort of spawned by the university of alabama or the university of or old missus efforts to remediate past discrimination where you could point to a history in those specific institutions that was really grotesque and you could point to that in those institutions as opposed to very different institutions with different histories engaging in different kinds of conduct and i and there's a lot of what ifs here on sort of the way in which these cases came up. But the one thing that I just keep circling back to is Harvard has a system when it walked into court where it preserved institutions that privileged white applicants

and it began to make up for the resulting diversity loss by discriminating against Asian applicants. That's not the posture you want to walk into court with. It is not. So the version of the world painted by Justice Thomas and his concurrence versus the version of the world painted by Justice Jackson. There's actually a whole section in Justice Thomas's concurrence dedicated to refuting Justice Jackson. And I find it to be a really interesting colloquy. And look, this is 237 pages. I'm actually not going to suggest that everyone go read all of this. We point out when we think

there's particularly well-written stuff going on. But what I will say is that if you start at page 49 of the overall opinion, which is part B of Justice Thomas's concurrence, where he just talks about Justice Jackson and read Justice Jackson. I think that back and forth is illustrative of a much broader conversation that we're having as a country. And you have two very smart black people

with different experiences and different viewpoints having this conversation. It's worth going to read that. And really what it's going to boil down to is, again, something we've been talking about for decades in this country, David, which is, do you fix racial discrimination and stereotyping at the individual level, or do you fix it at a group level? And this is a conversation between conservatives and liberals about a whole host of things.

Is it the individual or is it the group? And what's the fastest way? What's the best way? What's the most fair way? All of these we debate. You know, justice Thomas says, I of course agree that our society is not and has never been colorblind,

but under the 14th amendment the law must disregard all racial distinctions yet justice jackson would replace the second founder's vision with an organizing principle based on race in fact on her view almost all of life's outcomes may be unhesitatingly ascribed to race. This is so, she writes, because of statistical disparities among different racial groups. Even if some whites have lower household net worth than some blacks, what matters to Justice Jackson is that the average white household has more wealth than the average black household. And then he talks about his own experience growing up in the segregated South. I feel like people read that with very different

eyes david depending on their own experience right like uh where you stand depends on where you sit the way i put it i have a piece up already in the times about this is that i think the reality is that the the system that the supreme court created or is a permitting still, one that takes class-based affirmative action, allows for class-based affirmative action, does in fact still permit American institutions to address the legacy of all of these centuries of discrimination? Because what is one of the legacies of all of these centuries of discrimination because what is one of the legacies of the all of these centuries of discrimination one of the legacies is disparate wealth like another legacy is disparate income now these are not exclusive in other words just explain for a second because i think that

distinction is really important and i think a lot of people don't then explain the difference between income which we think of more socioe socioeconomic status, and wealth, which is more generational. So, and actually the disparity in the racial disparity in the US is much more a wealth disparity than it is an income disparity. The income gaps are closing. The wealth gap is enormous. And so wealth is take all of your assets and subtract all of your liabilities and you have

your wealth most people the bulk of their wealth would be for example in the equity in their home okay so just to take let's oversimplify this for this the purposes of explanation let's suppose that you are a person you're you're a a white person who has had the benefit of being able to live basically wherever you want to live. There's no redlining in the past. There's no formal residential segregation in the past. And so your parents' parents had a house in a nice part of town that was worth a lot. Your parents inherited maybe that house or the equity in that house.

And you begin to see how having just a nice home can result in large intergenerational wealth transfers and the maintenance and the building of intergenerational wealth. and the building of intergenerational wealth. Whereas, let's suppose your grandfather was, you're black and your grandfather was subject to redlining and residential discrimination. You never had an opportunity to build that wealth, to have that home to pass down. Maybe you suffered from discriminatory rules

regarding lending. So you, even if technically you could live in that neighborhood, you couldn't get the loan. Right. So you may be making $80,000 a year right now, same as the other guy. But the other guy had help on a down payment of his house from his parents, and they got him a college counselor,

all this other stuff. And the sort of new person to the $80,000 didn't get any of that generational benefit. They're starting now in the hopes of being able to get something to pass on to their kids. Totally different experience. You might both make 80 grand a year and one of you is renting. So that means you have no no equity and the other person owns a home say worth 600 000 that they owe 450 on they have that 150 000 of net worth that is available to them and so that distinction really the wealth income distinction matters a lot okay i want to talk about footnote four from the chief justice's opinion the united states

as amicus curiae contends that race-based admissions programs further compelling interest at our nation's military academies no military academy is part party to these cases however and none of the courts below addressed the propriety of race-based admission system in that context this opinion also does not address the issue in light of the potentially distinct interests that military academies may present. So what does that mean? It means the court is saying,

maybe the military academies can keep doing quota-based checkbox. Basically, none of this applies. And this was brought up in oral argument several times the idea that the military academies this was the solicitor general arguing have absolutely a need to have racial specific racial diversity in order to have that type of diversity in its fighting men and women and that that is a specific compelling interest that those military colleges and universities have. David, I guess I'm of two minds. One, I just want to know what

you thought about that. Two, if we think it's pretty important for the United States government to have a diverse fighting body, which I agree, diverse officer corps, diverse enlisted corps, then why isn't it compelling to have a diverse body of business leaders, of doctors, of everything else that one gets with a college degree in terms of then having a, wouldn't it be nice to have diverse doctors to serve diverse american patients wouldn't that be a compelling government interest potentially yeah i have a very different feeling about that footnote than i did the clarence thomas

comment that we just gave that i modified to nine and a half out of ten yeah a few notes this one i'm giving it like a two out of ten many notes many notes many notes um look okay on the one hand the court has long had a great degree of deference to the way in which the military governs itself including the ways in which the military engages in control over service members in a way that would violate the constitution in virtually any other institution in American life, that the military has a quite unique role to play in American life. And it has given wide latitude to carry out that role. Got it? That's the two out of the 10. The eight that's missing is, it's not a constitution-free zone, guys.

The military, it has a lot of ability to engage in levels of control and pass policies and enact policies that would otherwise violate your constitutional rights if you were a civilian it is not unlimited and if the argument is as gorsuch made quite capably in his concurrence that without doing sort of the race checkbox you can still achieve enormous amounts of diversity why is that different in the military academy context isn't it also true or is it just simply a lack of evidence in other words that well this wasn't a part of the issue in the case

we don't have the same kinds of evidence in the record regarding how alternative forms of admissions can still achieve diversity objectives so we're just leaving it alone. But heck, if alternative ways of achieving diversity that are not racial box checking work, wouldn't they also work for the military academies? But again, that wasn't part of the case, but I'm not a fan of that footnote, Sarah. All right. any closing thoughts do you think that this has ended the converse the legal conversation over affirmative action for a while do you think we'll be revisiting this we've talked about the thomas jefferson high school case of then having race neutral admissions policies with the purpose of having a racial

effect by limiting the number of Asian students getting into a school. We're also going to have a whole lot, a whole lot of universities experimenting with what their new admissions policy can be. And I think, you know, as we laid out sort of at the beginning, there's the easiest, least litigation way to do this, which is to follow the California, Michigan, Texas path. There's asking additional essay questions, minimizing legacy, athletic recruitment, stuff like that. I think there's also some lazy ways to do this. I think there's my checkbox version, which is leaning in to like test the court on some of this,

which I would find very interesting and not, you know, bad. I don't know. Where do you think this is all ending? So I think this is going to not settle a lot of questions. You're still going to have a lot of litigation around various kinds of more narrow box checking. You're going to have questions, what we're going to call the Thomas Jefferson or TJ adjacent kind of questions, which is, okay, is this race neutral policyutral policy with a race-disproportionate effect? Is it actually enacted for the purposes of invidious discrimination or no? I think that's going to be

an issue. The other thing, Sarah, though, that we haven't brought up yet is what are the implications of this case for sort of the whole kind of DEI ideology and how it works in corporate America, et cetera. Yeah, the Mansfield rule that we mentioned in the last episode, whereby law firms sign on to get Mansfield certified, meaning that basically they meet specific racial quotas when it comes not necessarily to their decisions on who to hire or promote, but on the pool of people that clients interface with or on the pool of people that clients interface with or on the pool of people considered for partnership, things like that,

which is interesting, though definitely a quota system. Like it's a percentage-based system. The Rooney rule. Although there's the Rooney, the narrow Rooney rule, which is the NFL itself and for head coach positions,

which I think meets your very specific historical exception because the NFL itself did discriminate in that hiring for those jobs. Yep. But the Rooney rule across corporate America, different. Yep. So I would put it like this. If you have a DEI program at your work that is just flat out race-based. In other words, we have a scholarship program only for black students, or we're going to have diversity training and we're going to have a white affinity group and a black affinity group. These are kinds of things that happen. If it's just a flat out race-based,

happen if it's just a flat out race-based um that's not gonna fly by and large unless you can do something like what sarah you just said about the rooney rule hey we specifically this institution specifically discriminated against black applicants in a specific way and this is designed to redress that specific discrimination, I think you're going to still be okay. But if it is a broad race-based classification because of diversity in general or whatever, this is going to cut the teeth out of a lot of the more extreme sort of versions of DEI ideology. All right, we're going to go on to Groff, but before we do, I do want to read the last paragraph of Justice Sotomayor's dissent. Notwithstanding this court's

actions, however, society's progress towards equality cannot be permanently halted. Diversity is now a fundamental American value housed in our varied and multicultural American community that only continues to grow. The pursuit of racial diversity will go on. Although the court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society's needs for diversity in education. Despite the court's unjustified exercise of power, the opinion today will serve only to highlight the court's own impotence in the face of an America who cries for equality resound. As has been the case before in the history of American democracy, the arc of the moral universe

will bend towards racial justice, despite the court's efforts today to impede its progress, citing Martin Luther King, Our God is Marching On speech, March 25th, 1965. All right, I want to talk about the Groff opinion. So we've talked about this several times. We said it was going to be one of our top opinions. This was religious accommodation at the workplace. Our postal worker does not want to work on Sundays. And the opinion came out. We knew Justice Alito would be writing it or rather highly suspected based on our bingo card that Justice Alito would be writing it. Indeed, he did. But what we did not suspect, A, that it would be a unanimous opinion.

I know. And that B, it would be so boring. Yes. There is no spicy Alito to be found. This is Alito at his most, you know, his wife's friend's dinner party where he's on his best behavior. This is Alito, not Spicy Alito. This is Buttered Wonder Bread Alito. It's worth going back and talking about the Hardeman decision because the Groff, in this

case, wanted the court to overturn Hardeman. The statute in question says that you must accommodate a religious practice unless it causes an undue hardship. But the court back in the 70s, in this case called Hardeman, basically said an undue hardship, yeah, that's anything more than a de minimis effort to try to accommodate that. If it takes you more than like a T-Rex lifting its little arms, then you don't have to accommodate it. And the unanimous court, Alito writing, basically said, yeah, we don't know where that de minimis thing came from. And frankly, it wasn't even a major part of the Hardison decision. So look, let's call it substantial in light of the business

that we're talking about, taking everything into account. And we're just going to send this back down because we don't know whether Groff and the Postal Service meet this on either side. Thank you for coming. Sorry, this looked like it was going to be a big decision. But Hardison is rather, they didn't overturn Hardison, but they did get rid of that de minimis language,

which wasn't surprising given that nobody was defending the de minimis language in oral argument or in the briefs. David, what say you? You know, it's really interesting because after I read this decision, I'm kind of retroactively stumped as to why we thought it would be so big. I know. stumped as to why we thought it would be so big i know you know especially since wait a minute the solicitor general didn't even really defend the de minimis standard i know what were we thinking nobody was defending the de minimis standard but it didn't wait until the end it did wait until the end and it's a short unanimous opinion with a short concurrence i think it was one of the last decisions to be think it was one of the last decisions to be

argued. It was one of the last decisions to be argued. It was about religious exercise. And we just got, I don't know, we got overexcited because Hardison was such a dumb, again, not even Hardison. There's like one line in Hardison about the de minimis efforts. Yeah, I don't know. You know, and there's parts of this that are essentially saying look you're gonna have to try to accommodate and then alito says an employer who fails to provide an accommodation has a defense only if the hardship is quote undue and a hardship that is attributable to employee animosity to a particular religion to religion in general or to the very notion of accommodating religious practice cannot be considered undue so in other words um if i'm asking for an accommodation and the other employees are kind of like pissed at me that i'm asking for an accommodation that's not an undue hardship

um but but if you are having trouble filling in slots in you know if you're if you are having trouble filling in slots and if you're having trouble staffing to meet customer needs, if you can make it concrete, then it can be an undue burden. It sort of leaves it... Honestly, Sarah, I don't know as a practical matter how much it's going to change the law. I don't think it's going to because I think Groff is going to lose this down below. I think you're right. I think it was creating an undue hardship. They were not able to cover the shifts. Even offering potentially small-ish sums of money,

they were going to have to offer big sums of money. And even then it was hurting morale and nobody wanted to cover the Sunday shift. So, you know, look, that's going to be so record dependent. I don't want to get too far over my skis, but I think if this was Groff's chance to win and he didn't win, it's going back down. I think he's going to lose. I do want to mention one thing. Justice Sotomayor wrote a concurrence and there is an interesting, I mean, this is the only interesting part of this decision. Petitioner Groff asked this court to overrule Hardison and to replace it with a significant difficulty

or expense standard. The court does not do so. That is a wise choice because stare decisis has enhanced force in statutory cases. Congress is free to revise this court's statutory interpretations. The court's respect for Congress's decision not to intervene promotes the separation of powers by requiring interested parties to resort to the legislative rather than the judicial process to achieve their policy goals. This justification for statutory stare decisis is especially strong here because Congress has spurred multiple opportunities to reverse Hardison openings as frequent and clear as this court ever sees.

Moreover, in the decades since Hardison was decided, Congress has revised Title VII multiple times in response to other decisions of this court, yet never in response to Hardison. response to Hardison. We're seeing a split this term that we didn't really see before of, well, look, maybe upholding precedent in the constitutional context does get messy. But when we're talking about statutes, Congress, do your job. Yeah. Yeah, absolutely. The way I interpret this case is basically this. Alito and the eight other justices are saying, we're not overruling Hardison. We're just asking you to read more than the words de minimis. Because that seemed to be the only relevant words that a lot of lower courts were taking from Hardison was de minimis.

When there's more to Hardison than de minimis. And so it seemed to be a more holistic to use the term that we're importing from our discussion last case a more holistic evaluation of hardison seems to be what the court is saying and one other thing about this sarah how many super majority or unanimous religious liberty opinions do we have to have before everyone can finally say religious liberty isn't hanging by a thread in the United States of America? Probably a few more, if you're actually asking that question. Sorry, I don't know. Infinity more? Infinity more. That's right. All right. we are expecting the student loan cases and 303 creative to come

out friday morning at 10 a.m um the court hasn't announced that those opinions are coming out but they're the only ones left and they are releasing opinions tomorrow another interesting note is that the supreme court conference today we are way behind in cert grants this term. The lowest that it's been going back to at least OT 15. So I'm expecting at some point that we're going to see some cert grants. They've got some qualified immunity cases pending, some other interesting ones that I'm sure we'll talk about if they're granted. Several interesting ones that i'm sure we'll talk about if they're granted several interesting ones that we're following and um last up david uh have you heard of nesting instincts like that women when they're pregnant like start nesting oh absolutely absolutely i

think we all have nesting instincts to greater or lesser degrees this poor second kid is getting all hand me downs for the nursery nothing oh no i mean just nothing new for the nursery but my nesting instinct kicked in from my own bed and i went totally wild like spending i can't tell you how many hours it would be embarrassing to tell you how many hours i researched sheets you know who has nesting instincts in a major way soldiers so if you when we when we landed in iraq in 2007 the energy and industry with which 800 guys set about carving out their own living space. Really? Was amazing. Aw.

Everything from using plywood to set up separate spaces. And it was really interesting to watch just the sheer energy invested in creating a place of your own. It was kind of cool. Well, tonight will be my first night on the new sheets. I'm pretty excited. I'll report back. If it's awesome, I'll report back. If it's not awesome, I won't. But this is where all my energy has been going. I love it. Waiting for Supreme Court opinions and during the waiting, reading about sheets.

That's perfect. All right. That'll be it from us today. Thanks for joining our emergency pod. Next time, we'll talk student loans and what do we call that? Free speech. What do we call those cases? 303 Creative. Compelled speech. Okay. Yeah.

Compelled speech. Great. Cool. Yeah. See you next time.