What A Day - Affirmative Action’s Last Stand

Episode Date: November 1, 2022

The Supreme Court heard arguments Monday over two cases that will decide the fate of affirmative action at American colleges and universities. Jay Willis, the editor-in-chief of Balls & Strikes, tells us what’s at stake if the justices decide to overturn decades of precedent on the issue.And in headlines: federal prosecutors charged the man accused of attacking House Speaker Nancy Pelosi’s husband, Taylor Swift became the first artist ever to claim the top 10 slots on the Billboard Hot 100 charts, and Elon Musk is reportedly planning layoffs at Twitter.Show Notes:Balls & Strikes: Supreme Court Coverage That Doesn't Suck – https://ballsandstrikes.org/Vote Save America: Every Last Vote – https://votesaveamerica.com/every-last-vote/Crooked Coffee is officially here. Our first blend, What A Morning, is available in medium and dark roasts. Wake up with your own bag at crooked.com/coffeeFollow us on Instagram – https://www.instagram.com/whataday/For a transcript of this episode, please visit crooked.com/whataday

It's Tuesday, November 1st. I'm Josie Duffy Rice. And I'm Trevelle Anderson, and this is What A Day, where we're no longer welcoming ghosts, ghouls, and goblins into our homes under any circumstances. Yeah, you guys had your chance. Spooky season is over, and it's Christmas now. Yep, witches, prepare for landing, because only Santa is allowed to fly now. On today's show, the man accused of attacking House Speaker Nancy Pelosi's husband faces assault and attempted kidnapping charges. Plus, Elon Musk is planning big changes for Twitter. But first, the U.S. Supreme Court is considering the fate of affirmative action at colleges and universities. Yes, we've been bracing ourselves for this for a while now,

but Josie, can you tell us about what went down? Yes, so the justices heard more than five hours of arguments Monday on two separate cases involving Harvard and the University of North Carolina at Chapel Hill, respectively, regarding application processes that take an applicant's race or ethnicity into consideration. Now, past Supreme Courts have ruled that universities can use race as a factor in offering admission, but with certain limits. Right.

So when was the last time the court even considered a case like this? The high court most recently took up the issue just six years ago when it upheld the limited use of race in admissions decisions for the University of Texas. Now, these programs were designed to improve diversity among university student bodies and to correct, to some extent, the historical inequities that have kept generations of people of color from pursuing higher education. But the conservative justices who currently make up the majority on today's Supreme Court have strongly indicated that they want to end these programs and overturn decades of precedent. And they're overturning decades of precedent slowly but surely. Yep, left and right.

So to recap the arguments and to learn more about what's at stake, I'm joined now by lawyer and writer Jay Willis. Jay is the editor-in-chief of Balls and Strikes, a website covering the Supreme Court through a progressive lens, and he sat through and survived all five hours of Monday's oral arguments. Jay, welcome to What A Day. Thank you for having me. Happy to be here to talk about the Supreme Court, an organization that only delivers good and fun and upbeat news for us to discuss. Okay, tell us a little bit about the affirmative action cases we heard,

the oral arguments that happened in front of the Supreme Court. Yeah, so the justices heard oral argument in two cases. One is about the admissions processes at the University of North Carolina, so public schools, and the other about the processes at Harvard, so private schools that receive federal funds. And the basic question in these cases is the same, whether schools are allowed to consider applicants' race during the admissions process. But I want to drill down on that a little bit because there's this misperception that drives a lot of the opposition or skepticism of affirmative action and that it's that affirmative action is based on quotas that schools pick a certain number of

black students and a certain number of white students and a certain number of latinx students and do their work like that and that's just not true right quotas have been illegal for almost 50 years since a 1978 case called Baki. What happens today is that schools consider race among a bunch of different factors in what's known as a holistic review process. It's the common sense stuff. Geographic diversity, or overcoming your hardship as a child, or athletic ability or legacy status, or like playing the oboe when the band needs an oboe player. That's how race actually works in the admissions process. But this myth continues to drive the dialogue around affirmative action, especially on the right. Tell us a little bit about who's challenging

this case. Like why is it being brought? Who's bringing it? Students for Fair Admissions is the organization of this guy, Ed Bloom. He's a Texas stockbroker. He was the driving force behind Shelby County, the 2013 decision that gutted the Voting Rights Act. And now he's back to take a hack at a different kind of law that extends marginal benefits to people of color. But I do want to emphasize and shout out the reporting of Jeannie Park and Kristen Penner at Slate here that Ed Bloom is not just like one guy on a one man crusade against voting rights and affirmative action. He receives tens of millions of dollars from corporate interests, right wing think tanks, plus the support of a boutique law firm known primarily for hiring

former Clarence Thomas clerks and defending Donald Trump in court. Right. So what did we see from the lawyers actually arguing this in court? And what did we hear from the justices during these unusually long arguments? Well, first of all, there was a lot of discussions about what admissions processes will look like if schools are no longer allowed to consider race. There's a lot of questions about the test going forward for admissions processes that eventually, inevitably, still get subjected to these kinds of challenges. At one point, one of the anti-affirmative action lawyers talked about students getting admitted on, quote,

race and race alone, end quote, which simply doesn't happen again and it's kind of embarrassing for him to so casually assert it and thinking about sort of the practical implications of what a post affirmative action world is going to look like Justice Katonji Brown Jackson brought this up in a really powerful hypothetical where she pointed out how race neutrality will disadvantage students of color like it will be not neutral and actively harmful to students of color. So she said, take two applicants who want their family backgrounds considered in the admissions

process. One fifth generation North Carolina resident who would be the fifth generation of their family to graduate from UNC and how they want to carry on the family tradition. And then she said, what about the fifth generation North Carolina resident who's the descendant of slaves, who would be the first in their family to graduate from the University of North Carolina? There's a very real possibility that race blindness would give a plus to the first applicant, but not the second one. How some people can talk about their identities, but others are discouraged from doing the same thing. That's not treating people of different races the same. That's treating certain people worse.

So again, we kind of talked earlier about how there have been cases about this before. There was Bakke. There were other cases in the early 90s. This has been discussed and considered by the court repeatedly. I think just a few years ago, Ruth Bader Ginsburg said she didn't expect for this issue to come up again because the court had considered it so much. Talk to us about why we're hearing this case again. The court has not been a liberal entity in at least 50 years, if not longer. But the extent to which it's lurched to the right, especially over the last five years, can't really be overstated. What conservative activist lawyers understand is that now is the time to go for it, to bring the cases that they

really want. You saw this last term when as soon as Justice Barrett gets confirmed to the court, suddenly they're asking the justices explicitly to overrule Roe. You're seeing the same thing here. This is like the conservative legal movement's next white whale that they're going for. And while they've got the votes, this is the time to ask for it. Affirmative action boils down to like how you view education as a public good or as like a commodity. My view and the Supreme Court's view over the past several decades has treated education as a public good, that it trains professionals and leaders, that there are social benefits to thinking about racial equity. Conservatives view it as a commodity that goes to the highest bidder, which in this context means whoever scored highest on the SAT. The status quo is that schools cling to just like the tiniest

bit of discretion in how they choose to put together their classes. And now we're going to get rid of that under, of all things, the guise of rooting out discrimination against white people. Right. And I think a point was made during the arguments today. It's not as if the percentage of black kids at Harvard or UNC is drastically higher than the national population, right? It's not as if there are no white kids at these schools. 8% of students at Harvard are black, 58% of them are white. You know, we're not talking about a situation where black students are taking over, you know, one of the most elite universities in the world, right? Like, I went there, I can tell you, we're in the far minority, you know?

So it just really reiterates like the intense focus on rooting out students of color, period. It is just an obsession with making sure that schools are more white. We brought up Shelby County earlier, and there was an interesting point in the oral argument today. In Shelby County, Chief Justice Roberts wrote for the majority, and his argument was basically that parts of the Voting Rights Act could go because it had run its course. Black turnout in elections was higher, more black candidates were running for and winning elected office. So he said, what do we need a Voting Rights Act for? And the Solicitor General made a similar point today. Affirmative action as it exists right now in like this very on the margins consideration in the admissions process. Affirmative action is working. It's not like awesome, but it's better than nothing. Racism is over, understanding risks upsetting even the marginal progress towards addressing the legacies of racism and slavery that this country will basically never stop addressing. You obviously are editor-in-chief of Balls and Strikes, a website that public of this notion that the Supreme Court is a purely

legal body that looks at law and precedents and makes decisions separate from politics. You know, you've been vocal about your belief that the Supreme Court is actually a political institution and is making decisions based on their own political leanings, viewpoints, and values. Does this case change your perspective on that at all or reinforce it? I mean, how does this reflect your beliefs about the connection between Supreme Court justices and the decisions they make and the political parties that they belong to, even if we want to pretend that they're apolitical beings? This has been a white whale of not just the conservative legal movement, but of like reactionary politics, Republican politics for decades, right?

The same way Republicans rallied around the anti-choice movement, the opposition to affirmative action is rooted in this sense of grievance that if something wrong, if something bad has happened to you, it's because a less deserving black person got what you deserved. Cases like this are coming before this court because conservatives see an opportunity to like vindicate these narratives. That's why conservatives have invested so much time and energy and money in seizing control of the federal judiciary because doing so allows them to take controversial policy opinions, unpopular policy opinions, and say, well, you know, we're just following the law to its inevitable conclusion. Right. Thank you so much, Jay, for joining us. Yeah, thank you again for having me. That was my conversation with Jay Willis, the

editor-in-chief of the website Balls and Strikes. The Supreme Court is expected to hand down its decision on these cases sometime during the summer, and we'll be sure to keep you updated. But in the meantime, that's the latest for now. We will be back after some ads. Let's get to some headlines. Headlines. Federal prosecutors charged the man accused of attacking House Speaker Nancy Pelosi's husband, Paul, with attempted kidnapping and assault yesterday. According to the complaint, David DePape told police he planned to interrogate Nancy Pelosi, who was in Washington, D.C. at the time when he broke into her San Francisco home on Friday, and, quote, break her kneecaps. DePape is expected to be arraigned today and could spend up

to 50 years in prison for the attack. The former Michigan police officer who shot and killed Patrick Leoya in April will stand trial for second-degree murder. Christopher Schur, who is white, is accused of shooting Leoya, who was black, after Leoya ran away from a traffic stop. Video footage of Leoya's last minutes alive show him wrestling with Schur before he was pinned down and shot in the back of the head. Schur was fired from the Grand Rapids Police Department back in June. He has pleaded not guilty. Former President Donald Trump once again asked the Supreme Court to get involved in his legal drama. Yesterday, he asked the court to temporarily block the House Ways and Means Committee from obtaining his tax returns. This is part of a years-long fight to block their release

and comes after an appeals court judge ruled last week that Trump has to disclose them to lawmakers in the coming days. And speaking of Trump and his taxes, yesterday the New York criminal tax fraud trial against the Trump organization began. This case focuses on whether the family-owned business helped its executives cheat on their taxes by compensating them with expensive off-the-books perks like luxury cars and apartments. The former president, along with his three adult children, could be called to testify in this trial in another courtroom family reunion for the Trumps. Try as we might, and I surely do try hard,

we can't ignore the vice grip Taylor Swift has on pop music. She just became the first artist ever to claim the top 10 slots on the Billboard Hot 100 charts in the U.S. following the release of her album Midnight. The previous record holder was Drake with nine of the top 10 songs last September. Now we know Swifties pour over everything she does looking for secret clues about her life. So in light of her taking the top 10, let's look at the significance of the number 10 here. 10 spelled backwards is net.

The net is where most people listen to music. Music can be created by singing. And Taylor Swift is herself an extremely popular singer. So consider this mystery solved. Wow. You're like Nancy Drew. The best. I'm so impressed.

The best. And Elon Musk has already gone from kicking the tires on his new toy, Twitter, to removing the tires, to burning the tires, to ripping apart and swallowing large portions of the engine. Since buying the site late last week for $44 billion, Musk has fired three of its top executives and dissolved the board, making him Twitter's sole director. According to The Washington Post, he worked through the weekend with several longtime associates and Twitter's remaining senior executives to plan layoffs.

Reportedly, 25 percent of the company's staff will lose their jobs. As for what else is on the horizon, some outlets are reporting Musk has begun efforts to revive the short- of bringing back Vine. That was a great moment in culture and time. That is a tiny bright spot. This $20 for a blue check is absurd. Come on now. It's absurd. Honestly, look, if any of us are willing to spend

even a moment of our short lives in the cesspool that is Twitter, we should be paid accordingly. We should not be paying. Absolutely. And on some days, we like to close out our headline section by talking about who paid for famous actors' hospital bills. We've never actually done this before, but this feels like a good time to start. Interview footage recently resurfaced on social media showing that Dr. Martin Luther King Jr.

and Coretta Scott King picked up the tab when Julia Roberts was born in 1967. Apparently, the two families became friends after the king children started attending a theater school in atlanta owned by walter and betty roberts the parents of julia roberts in response to the recirculation of this story bernice king who is the youngest child of the civil rights leaders tweeted quote i know the story well but it is moving for me to be reminded of my parents generosity and influence i honestly this story is like incredible civil rights mad lib like who knew julia roberts birth dr martin luther king i mean it's just great it's really bonkers but also a reminder that like you know the civil rights movement wasn't that long ago right because julia roberts is not that old. Absolutely. Yeah. So every time you see

those black and white pictures and you start convincing yourself it was 200 years ago. Mm-hmm. And those are the headlines. That is all for today. If you like the show, make sure you subscribe,

leave a review, kick a tire, and tell your friends to listen. And if you are into reading and not just the lyrics of Taylor Swift songs, looking for clues like me, Woodaday is also a nightly newsletter. Check it out

and subscribe at Cricut.com slash subscribe. I'm Treville Anderson. I'm Josie Duffy Rice. And pay us to use Twitter. Listen, we're the lifeblood of that site, okay? Yeah. And we deserve an extra chat. How else do you expect me to find out

who makes the warmest coat? If I'm not getting paid money to ask these questions to people I don't know on the internet. What a Day is a production of Crooked Media. It's recorded and mixed by Bill Lance. Jazzy Marine, and Raven Yamamoto are our associate producers. Our head writer is John Milstein, and our executive producer is Lita Martinez. Our theme music is by Colin Gilliard and Kashaka.