Analysis-'Aggressively conservative' Supreme Court plunges into U.S. culture war
Tue, January 25, 2022,
By Lawrence Hurley and Andrew Chung
WASHINGTON (Reuters) - The U.S. Supreme Court's decision to hear a case that could doom university policies considering race as a factor in student admissions is the latest sign of the conservative majority's eagerness to put its stamp on America's most divisive issues.
The court already was due to issue rulings by the end of June in cases giving the justices a chance to curtail abortion rights and widen gun rights - major goals of U.S. conservatives. The case targeting the student admissions practices of Harvard University and the University of North Carolina, taken up https://www.reuters.com/legal/government/us-supreme-court-hear-challenge-race-conscious-college-admissions-2022-01-24 by the court on Monday, gives the conservative justices a chance to cripple affirmative action policies long despised by the American right, with a ruling expected next year.
The court has become increasingly assertive since the addition of former President Donald Trump's third appointee, Amy Coney Barrett, in 2020 gave the nation's top judicial body a 6-3 conservative majority. Her appointment changed the court's dynamics by marginalizing Chief Justice John Roberts, considered an incrementalist conservative.
"This particular six-justice majority seems willing to push ahead in an aggressively conservative direction on multiple fronts, without feeling the need to be moderated by concepts of judicial restraint, stare decisis or incrementalism," said Elizabeth Wydra, president of the liberal Washington-based Constitutional Accountability Center advocacy group.
Stare decisis is the legal doctrine of respecting precedents.
Based on oral arguments held last year, the court's conservatives seem poised, in a case from Mississippi, to undermine or even overturn the landmark 1973 Roe v. Wade ruling that legalized abortion nationwide and, in a case from New York, expand the right to carry firearms in public.
The court's increasingly aggressive stance toward taking up new cases signals an emboldened majority accelerating its rightward shift, court watchers said.
The court appears "more willing to reconsider precedent and consider broad questions when the opportunity arises," said Jonathan Adler, a professor at Case Western Reserve School of Law in Ohio.
Before conservative Justice Antonin Scalia's 2016 death and the subsequent addition of Trump's appointees - Neil Gorsuch, Brett Kavanaugh and Barrett - the court had been more cautious in deciding on what types of cases to hear.
It had a 5-4 conservative majority, but one of the conservatives, Justice Anthony Kennedy, sometimes sided with the liberals on contentious "culture war" issues including abortion, affirmative action and LGBT rights. That led to the court occasionally avoiding contentious cases or taking up disputes with lower stakes. It appears no longer to have such qualms.
'POLITICAL APPEARANCE'
Four justices are needed in order for the court to take up a case. And it has at least that many who are undeterred by being perceived as political actors, said University of Denver political science professor Joshua Wilson, who specializes in conservative law and politics.
"Given the political appearance of the docket that they're putting together, it's all the more remarkable given that they have to know how much the public is paying attention," Wilson said.
The role of Roberts, who has sought to defend the court as an institution and has avoided quick and dramatic moves, has been diminished, with the conservative bloc able to prevail in rulings even if he sides with the liberal justices. Roberts served as the court's swing vote after Kennedy retired in 2018 and before Barrett replaced the late liberal Justice Ruth Bader Ginsburg two years later.
"When Roberts was the median (justice), even the four justices to his right were worried about where he would end up," said John McGinnis, a professor at Northwestern University School of Law in Illinois.
The justices now seem keen to dive in - sometimes even before lower courts have fully considered cases - as they did in multiple challenges to Trump administration policies blocked by lower courts.
The conservative justices also have exhibited skepticism toward the power of federal agencies, which could hem in President Joe Biden and future administrations. The court, for example, this month blocked the Biden administration's COVID-19 vaccination-or-testing mandate for companies with at least 100 employees.
In what might be described as part of what some conservative activists label a "war on the administrative state" - curbing federal agency authority - the justices have taken up two cases challenging the scope of landmark environmental laws aimed at reducing air and water pollution. They did so despite Biden's administration asking them to hold off while agencies write new regulations.
Ian Fein, a lawyer with the Natural Resources Defense Council environmental group, said the court was "incredibly aggressive" in taking up the two cases.
The court has also made bold moves on religious rights.
Before Kennedy retired, it was generally supportive of religious challenges. That stance has deepened since then, including rulings backing religious groups https://www.reuters.com/legal/government/us-supreme-courts-shadow-docket-favored-religion-trump-2021-07-28 challenging COVID-19 restrictions. The court last week heard a case from Maine https://www.reuters.com/legal/government/us-supreme-court-again-tackles-public-funding-religious-schools-2021-12-08 that gives it an opportunity to further expand public funding of religious entities.
(Reporting by Lawrence Hurley and Andrew Chung; Editing by Will Dunham and Scott Malone)
Tue, January 25, 2022,
By Lawrence Hurley and Andrew Chung
WASHINGTON (Reuters) - The U.S. Supreme Court's decision to hear a case that could doom university policies considering race as a factor in student admissions is the latest sign of the conservative majority's eagerness to put its stamp on America's most divisive issues.
The court already was due to issue rulings by the end of June in cases giving the justices a chance to curtail abortion rights and widen gun rights - major goals of U.S. conservatives. The case targeting the student admissions practices of Harvard University and the University of North Carolina, taken up https://www.reuters.com/legal/government/us-supreme-court-hear-challenge-race-conscious-college-admissions-2022-01-24 by the court on Monday, gives the conservative justices a chance to cripple affirmative action policies long despised by the American right, with a ruling expected next year.
The court has become increasingly assertive since the addition of former President Donald Trump's third appointee, Amy Coney Barrett, in 2020 gave the nation's top judicial body a 6-3 conservative majority. Her appointment changed the court's dynamics by marginalizing Chief Justice John Roberts, considered an incrementalist conservative.
"This particular six-justice majority seems willing to push ahead in an aggressively conservative direction on multiple fronts, without feeling the need to be moderated by concepts of judicial restraint, stare decisis or incrementalism," said Elizabeth Wydra, president of the liberal Washington-based Constitutional Accountability Center advocacy group.
Stare decisis is the legal doctrine of respecting precedents.
Based on oral arguments held last year, the court's conservatives seem poised, in a case from Mississippi, to undermine or even overturn the landmark 1973 Roe v. Wade ruling that legalized abortion nationwide and, in a case from New York, expand the right to carry firearms in public.
The court's increasingly aggressive stance toward taking up new cases signals an emboldened majority accelerating its rightward shift, court watchers said.
The court appears "more willing to reconsider precedent and consider broad questions when the opportunity arises," said Jonathan Adler, a professor at Case Western Reserve School of Law in Ohio.
Before conservative Justice Antonin Scalia's 2016 death and the subsequent addition of Trump's appointees - Neil Gorsuch, Brett Kavanaugh and Barrett - the court had been more cautious in deciding on what types of cases to hear.
It had a 5-4 conservative majority, but one of the conservatives, Justice Anthony Kennedy, sometimes sided with the liberals on contentious "culture war" issues including abortion, affirmative action and LGBT rights. That led to the court occasionally avoiding contentious cases or taking up disputes with lower stakes. It appears no longer to have such qualms.
'POLITICAL APPEARANCE'
Four justices are needed in order for the court to take up a case. And it has at least that many who are undeterred by being perceived as political actors, said University of Denver political science professor Joshua Wilson, who specializes in conservative law and politics.
"Given the political appearance of the docket that they're putting together, it's all the more remarkable given that they have to know how much the public is paying attention," Wilson said.
The role of Roberts, who has sought to defend the court as an institution and has avoided quick and dramatic moves, has been diminished, with the conservative bloc able to prevail in rulings even if he sides with the liberal justices. Roberts served as the court's swing vote after Kennedy retired in 2018 and before Barrett replaced the late liberal Justice Ruth Bader Ginsburg two years later.
"When Roberts was the median (justice), even the four justices to his right were worried about where he would end up," said John McGinnis, a professor at Northwestern University School of Law in Illinois.
The justices now seem keen to dive in - sometimes even before lower courts have fully considered cases - as they did in multiple challenges to Trump administration policies blocked by lower courts.
The conservative justices also have exhibited skepticism toward the power of federal agencies, which could hem in President Joe Biden and future administrations. The court, for example, this month blocked the Biden administration's COVID-19 vaccination-or-testing mandate for companies with at least 100 employees.
In what might be described as part of what some conservative activists label a "war on the administrative state" - curbing federal agency authority - the justices have taken up two cases challenging the scope of landmark environmental laws aimed at reducing air and water pollution. They did so despite Biden's administration asking them to hold off while agencies write new regulations.
Ian Fein, a lawyer with the Natural Resources Defense Council environmental group, said the court was "incredibly aggressive" in taking up the two cases.
The court has also made bold moves on religious rights.
Before Kennedy retired, it was generally supportive of religious challenges. That stance has deepened since then, including rulings backing religious groups https://www.reuters.com/legal/government/us-supreme-courts-shadow-docket-favored-religion-trump-2021-07-28 challenging COVID-19 restrictions. The court last week heard a case from Maine https://www.reuters.com/legal/government/us-supreme-court-again-tackles-public-funding-religious-schools-2021-12-08 that gives it an opportunity to further expand public funding of religious entities.
(Reporting by Lawrence Hurley and Andrew Chung; Editing by Will Dunham and Scott Malone)
By COLLIN BINKLEYtoday
FILE - An American flag waves in front of the Supreme Court building on Capitol Hill in Washington, on Nov. 2, 2020. The Supreme Court on Monday agreed to review a challenge to the consideration of race in college admission decisions, often known as affirmative action. The justices are taking up a pair of lawsuits alleging that Harvard University and the University of North Carolina discriminate against Asian American applicants. (AP Photo/Patrick Semansky, File)
CAMBRIDGE, Mass. (AP) — The Supreme Court has agreed to review a challenge to the consideration of race in college admission decisions, often known as affirmative action. With three new conservative justices on the court since its last review, the practice may be facing its greatest threat yet.
The court said Monday it would consider a pair of lawsuits alleging that Harvard University and the University of North Carolina discriminate against Asian American applicants. The practice has been reviewed by the court several times over the past 40 years and has generally been upheld, but with limits.
A look at the case:
WHAT ARE RACE-CONSCIOUS ADMISSIONS POLICIES?
When colleges sort through their applicants deciding which ones to admit, some consider race along with grades and a host of other factors like athletics and community service. Some schools have used the practice for decades as a way to address racial discrimination against Black students and others who were long excluded from America’s colleges. Today, supporters say it’s an important tool that helps bring a diverse mix of students to campus, while opponents say it amounts to its own form of discrimination.
Most colleges don’t disclose whether they consider race, but the practice is believed to be limited to a small fraction of schools. Some estimates put it at a few hundred of the nation’s 6,000 colleges, mostly at more selective colleges.
Most states allow affirmative action but nine have outlawed it, including California, Florida and, most recently, Idaho, which banned it in 2020.
WHAT’S THE LATEST CHALLENGE?
The Supreme Court is taking up two lawsuits filed by Students for Fair Admissions, a Virginia-based group that says race should play no part in the admission process. The group is led by Edward Blum, a legal strategist who has spent years working to rid racial considerations from college admissions.
In its lawsuits, the group argues that Harvard and UNC intentionally discriminate against Asian American applicants. Examining six years of data at Harvard, the group found that Asian American applicants had the strongest academics but were admitted at the lowest rates compared to students of other races.
It also found that Harvard’s admissions officers gave Asian Americans lower scores on a subjective “personal” rating designed to measure attributes such as likeability and kindness.
A federal judge in 2019 upheld Harvard’s admissions practices, saying it was “not perfect” but passed constitutional muster. The judge said race-conscious practices always penalize groups that don’t get an advantage, but they’re justified “by the compelling interest in diversity” on college campuses.
An appeals court upheld the ruling in 2020.
The group brought similar claims against UNC, saying its process disadvantages white and Asian American students. A federal judge sided with the university last year.
In its appeal to the Supreme Court, the group asked the panel to review both cases and also to overturn the court’s 2003 decision in Grutter v. Bollinger, which upheld admissions policies at the University of Michigan’s law school. That decision cleared colleges to consider consider race if it’s done in a “narrowly tailored” way to serve a “compelling interest.”
The group’s appeal argued that the Grutter decision “endorsed racial objectives that are amorphous and unmeasurable and thus incapable of narrow tailoring.”
WHAT HAS THE SUPREME COURT SAID ABOUT AFFIRMATIVE ACTION?
Race-conscious policies have gone before the Supreme Court several times dating to the 1970s and have generally been upheld, with some limits.
Racial quotas that reserve a certain number of seats for minority students have been deemed unconstitutional, but the court has said colleges can consider race as long as it’s one of many factors in the decision.
Students’ race can be used as a “plus factor” to give them an edge, but it can’t be the defining factor, the court has said. Schools must be able to show they consider race in a “narrowly tailored” way, and that there is no race-neutral approach that would meet the same objective of increasing student diversity.
The court last examined affirmative action in 2016, when it upheld the admissions process at the University of Texas. That suit, also orchestrated by Blum, was filed by a white Texan who was denied admission to the university.
WHAT ARE THE POLITICS?
The Trump administration sided with Blum in the Harvard case, saying in 2018 that the school’s process “may be infected with racial bias.” The administration also rescinded an Obama-era policy encouraging schools to consider race, and it filed its own lawsuit accusing Yale University of discriminating against Asian American and white applicants.
The Biden administration later dropped the Yale lawsuit and supported Harvard against Blum, urging the Supreme Court not to take up the case.
Meanwhile, the court has shifted further to the right, with three new conservative justices appointed by Trump.
WHAT IS THE POSSIBLE IMPACT?
Affirmative action backers hope the court leaves things as they are, giving colleges flexibility to consider race within certain bounds. Opponents hope for a sweeping decision that would remove race from the admission process entirely.
Eliminating the practice would send shockwaves across American higher education and leave many schools scrambling to find other ways to promote diversity. Some colleges say that, without considering race, they would expect to see a decrease in their Black student populations.
Opponents say ending affirmative action would make the process fairer, and some say colleges could preserve racial diversity by giving an advantage to low-income students.
Between both extremes are a wide range of possible options. The court could add further restrictions on the practice, for example, or it could raise the standard of proof colleges must meet to show they’re within constitutional bounds.
WHAT ARE PEOPLE ARE SAYING?
Blum welcomed the court’s announcement, saying he hopes the justices will end racial considerations at all colleges. In a statement, he added that Harvard and UNC have “have racially gerrymandered their freshman classes in order to achieve prescribed racial quotas.”
Harvard President Lawrence Bacow vowed to defend the school’s use of race as one of many factors, saying it “produces a more diverse student body which strengthens the learning environment for all.”
Several groups representing students of color denounced the court’s decision to get involved. NAACP Legal and Educational Defense Fund director Sherrilyn Ifill said it “threatens the nation’s ideals of equality.”
In a statement, she said holistic, race-conscious admissions processes “mitigate systemic barriers to educational opportunities faced by many Black students and other students of color, ensuring that all hard-working and qualified applicants receive due consideration.”
Some other groups applauded the news. Mike Zhao, president of the Asian American Coalition for Education, said Americans should have equal opportunity to achieve success “through hard work, determination and initiative.”
“It’s time for the U.S. Supreme Court to step up to protect our constitutional rights,” he said in a statement.
FILE - An American flag waves in front of the Supreme Court building on Capitol Hill in Washington, on Nov. 2, 2020. The Supreme Court on Monday agreed to review a challenge to the consideration of race in college admission decisions, often known as affirmative action. The justices are taking up a pair of lawsuits alleging that Harvard University and the University of North Carolina discriminate against Asian American applicants. (AP Photo/Patrick Semansky, File)
CAMBRIDGE, Mass. (AP) — The Supreme Court has agreed to review a challenge to the consideration of race in college admission decisions, often known as affirmative action. With three new conservative justices on the court since its last review, the practice may be facing its greatest threat yet.
The court said Monday it would consider a pair of lawsuits alleging that Harvard University and the University of North Carolina discriminate against Asian American applicants. The practice has been reviewed by the court several times over the past 40 years and has generally been upheld, but with limits.
A look at the case:
WHAT ARE RACE-CONSCIOUS ADMISSIONS POLICIES?
When colleges sort through their applicants deciding which ones to admit, some consider race along with grades and a host of other factors like athletics and community service. Some schools have used the practice for decades as a way to address racial discrimination against Black students and others who were long excluded from America’s colleges. Today, supporters say it’s an important tool that helps bring a diverse mix of students to campus, while opponents say it amounts to its own form of discrimination.
Most colleges don’t disclose whether they consider race, but the practice is believed to be limited to a small fraction of schools. Some estimates put it at a few hundred of the nation’s 6,000 colleges, mostly at more selective colleges.
Most states allow affirmative action but nine have outlawed it, including California, Florida and, most recently, Idaho, which banned it in 2020.
WHAT’S THE LATEST CHALLENGE?
The Supreme Court is taking up two lawsuits filed by Students for Fair Admissions, a Virginia-based group that says race should play no part in the admission process. The group is led by Edward Blum, a legal strategist who has spent years working to rid racial considerations from college admissions.
In its lawsuits, the group argues that Harvard and UNC intentionally discriminate against Asian American applicants. Examining six years of data at Harvard, the group found that Asian American applicants had the strongest academics but were admitted at the lowest rates compared to students of other races.
It also found that Harvard’s admissions officers gave Asian Americans lower scores on a subjective “personal” rating designed to measure attributes such as likeability and kindness.
A federal judge in 2019 upheld Harvard’s admissions practices, saying it was “not perfect” but passed constitutional muster. The judge said race-conscious practices always penalize groups that don’t get an advantage, but they’re justified “by the compelling interest in diversity” on college campuses.
An appeals court upheld the ruling in 2020.
The group brought similar claims against UNC, saying its process disadvantages white and Asian American students. A federal judge sided with the university last year.
In its appeal to the Supreme Court, the group asked the panel to review both cases and also to overturn the court’s 2003 decision in Grutter v. Bollinger, which upheld admissions policies at the University of Michigan’s law school. That decision cleared colleges to consider consider race if it’s done in a “narrowly tailored” way to serve a “compelling interest.”
The group’s appeal argued that the Grutter decision “endorsed racial objectives that are amorphous and unmeasurable and thus incapable of narrow tailoring.”
WHAT HAS THE SUPREME COURT SAID ABOUT AFFIRMATIVE ACTION?
Race-conscious policies have gone before the Supreme Court several times dating to the 1970s and have generally been upheld, with some limits.
Racial quotas that reserve a certain number of seats for minority students have been deemed unconstitutional, but the court has said colleges can consider race as long as it’s one of many factors in the decision.
Students’ race can be used as a “plus factor” to give them an edge, but it can’t be the defining factor, the court has said. Schools must be able to show they consider race in a “narrowly tailored” way, and that there is no race-neutral approach that would meet the same objective of increasing student diversity.
The court last examined affirmative action in 2016, when it upheld the admissions process at the University of Texas. That suit, also orchestrated by Blum, was filed by a white Texan who was denied admission to the university.
WHAT ARE THE POLITICS?
The Trump administration sided with Blum in the Harvard case, saying in 2018 that the school’s process “may be infected with racial bias.” The administration also rescinded an Obama-era policy encouraging schools to consider race, and it filed its own lawsuit accusing Yale University of discriminating against Asian American and white applicants.
The Biden administration later dropped the Yale lawsuit and supported Harvard against Blum, urging the Supreme Court not to take up the case.
Meanwhile, the court has shifted further to the right, with three new conservative justices appointed by Trump.
WHAT IS THE POSSIBLE IMPACT?
Affirmative action backers hope the court leaves things as they are, giving colleges flexibility to consider race within certain bounds. Opponents hope for a sweeping decision that would remove race from the admission process entirely.
Eliminating the practice would send shockwaves across American higher education and leave many schools scrambling to find other ways to promote diversity. Some colleges say that, without considering race, they would expect to see a decrease in their Black student populations.
Opponents say ending affirmative action would make the process fairer, and some say colleges could preserve racial diversity by giving an advantage to low-income students.
Between both extremes are a wide range of possible options. The court could add further restrictions on the practice, for example, or it could raise the standard of proof colleges must meet to show they’re within constitutional bounds.
WHAT ARE PEOPLE ARE SAYING?
Blum welcomed the court’s announcement, saying he hopes the justices will end racial considerations at all colleges. In a statement, he added that Harvard and UNC have “have racially gerrymandered their freshman classes in order to achieve prescribed racial quotas.”
Harvard President Lawrence Bacow vowed to defend the school’s use of race as one of many factors, saying it “produces a more diverse student body which strengthens the learning environment for all.”
Several groups representing students of color denounced the court’s decision to get involved. NAACP Legal and Educational Defense Fund director Sherrilyn Ifill said it “threatens the nation’s ideals of equality.”
In a statement, she said holistic, race-conscious admissions processes “mitigate systemic barriers to educational opportunities faced by many Black students and other students of color, ensuring that all hard-working and qualified applicants receive due consideration.”
Some other groups applauded the news. Mike Zhao, president of the Asian American Coalition for Education, said Americans should have equal opportunity to achieve success “through hard work, determination and initiative.”
“It’s time for the U.S. Supreme Court to step up to protect our constitutional rights,” he said in a statement.
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