WASHINGTON (CN) — U.S. Supreme Court Justice Ketanji Brown Jackson may not have been in the majority in this term’s blockbuster ruling on affirmative action, but her fingerprints were all over it.
After four decades of allowing colleges to use race in admissions, the Supreme Court largely gutted the diversity measure this term. Finding policies at the University of North Carolina and Harvard to be unconstitutional, the conservative majority said universities could not continue their use of race in admissions policies.
“Eliminating racial discrimination means eliminating all of it,” Chief Justice John Roberts wrote for the 6-3 majority. “And the equal protection clause, we have accordingly held, applies ‘without regard to any differences of race, of color, or of nationality’ — it is ‘universal in [its] application.’”
The Harvard and UNC cases were set up as a direct challenge to Grutter v. Bollinger, where the court found affirmative action policies constitutional. After years of litigation, the lower courts found the universities’ policies to comply with Grutter. Instead of taking the big leap to explicitly overturn Grutter, the court took a small jump, tightening restrictions on when race could be considered in the admissions process.
To be clear, Roberts’ belief that the court left Grutter intact was not universal. In a concurring opinion, Justice Clarence Thomas wrote that the court made clear Grutter was “for all intents and purposes, overruled.” Justice Sonia Sotomayor shared the same sentiment in her dissent.
Roberts’ majority seemed to feel it did not completely overturn its decades of precedent on the matter because of a window the ruling keeps open for the use of race in admissions.
“At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” Roberts wrote.
Here, Roberts is referring to application essays where a student might mention their race as a part of their experience. Clarifying that schools can not just use essays to designate race instead of box-checking, the majority’s ruling allows students to mention their race in the context of their own stories.
“A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination,” Robert wrote. “Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual — not on the basis of race.”
Legal experts examining the ruling think this allowance could be tied to Jackson’s questions during oral arguments in the UNC case. She recused from the Harvard decision because of her recent tenure on their board.
“I don't think there's any question that that is a meant as an answer to Justice Jackson's really probing, thoughtful set of hypothetical questions that she'd put to counsel in the University of North Carolina case,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone interview.
Even though she only participated in one of the cases, Jackson stood out during oral arguments in December. Jackson noted that application essays can include things that shape a student’s life experience like religion or where they grew up. She asked if students whose life experiences were shaped in some way by race would be harmed by a ruling disavowing affirmative action.
“We're entertaining a rule in which some people can say the things they want about who they are and have that valued in the system, but other people are not going to be able to because they won't be able to reveal that they are Latino or African American or whatever,” Jackson said. “I'm worried that that creates an inequity in the system with respect to being able to express your identity and, importantly, have it valued by the university when it is considering the goal of bringing in different people.”
Jackson’s colleagues noted this line of questioning. Justice Amy Coney Barrett even mentioned her specifically during the Harvard case in which she was recused. Ultimately it would become a vital caveat to the ruling’s prohibition on race in admissions.
“There are a lot of admissions offices that are going to pay a lot of attention to that,” Lawrence said. “I predict there will be future litigation that all flows from interpreting that paragraph and that paragraph was a response to something that a brand new justice wrote.”
Jackson’s eagerness in her first term on the court vexed some court watchers accustomed to the reverent approach most justices adopt while getting their footing on the high court bench. She asked questions often and early during oral arguments, not waiting for her more senior colleagues to jump in first. There was even an instance where Roberts passed a note to Jackson after she interrupted an attorney’s rebuttal with additional questions.
While Jackson might be fighting a losing battle on cases that fall along ideological lines for the conservative supermajority, she seemed to find a way to still prove influential from the outside.
“It's hard to remember another example where a question clearly influenced what I suspect will turn out to be a major part of an opinion that the person didn't write or join,” Lawrence said. “That's the key here. If she asked a question and then used that as part of her opinion, that happens all the time. But she asked a question that she ends up dissenting from the opinion that uses it. I think that's intriguing.”
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