Justices Appear Skeptical of Affirmative Action

Inside Higher Ed

Scott Jaschik

October 31, 2022

Experts always warn against predicting the outcome of U.S. Supreme Court decisions on the basis of the questions the justices ask during hearings.

But in arguments before the Supreme Court today, justices with a history of opposing affirmative action—or new justices expected to oppose affirmative action—asked questions that reflected skepticism about the practice. The comments below are from the hearing on the affirmative action plan of the University of North Carolina at Chapel Hill, the first of the arguments on today’s docket. This article will be updated later with the arguments about Harvard University’s policies and practices.

For instance, Justice Clarence Thomas said of diversity, “I don’t have a clue what it means.”

And he rejected the answer from Ryan Park, who was defending UNC, about the educational benefits of diversity. Thomas said he didn’t “put much stock in that.”

When the U.S. solicitor general, Elizabeth B. Prelogar, said the U.S. service academies practice affirmative action in admissions because the military needs a diverse population, Justice Thomas asked his question again.

Justice Amy Coney Barrett asked about affinity group housing for Black students and their supporters, even as she acknowledged that UNC Chapel Hill doesn’t offer such housing.

Justice Neil M. Gorsuch posed a hypothetical: What about colleges that could have a diverse student body solely by eliminating preferences for legacy applicants, the children of donors or squash players?

And several justices addressed the question of how long affirmative action should be needed. When Sandra Day O’Connor was a justice, she wrote in a 2003 affirmative action case that she imagined it would not be necessary in 25 years. When Justice Barrett asked Park about it, he said, “I think it’s a dial, not a switch,” and that UNC has already “dialed it down.”

Prelogar said, “I do think eventually” affirmative action will end in higher education.

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