Justice Ketanji Brown Jackson clashed Monday with a lawyer for a student group seeking to end affirmative action in college admissions, questioning whether the group has “standing” to sue.
“Why is it that race is doing anything different to your members’ ability to compete in this environment,” Jackson asked Students for Fair Admissions (SFFA) lawyer Patrick Strawbridge, in comparison to a number of other factors involved in admissions.
“It’s in the context of everything else…the admissions office is looking at,” Jackson added. “You haven’t demonstrated or shown a single instance where all they look at is race. They’re taking in the whole picture.”
Jackson also stated that the SFFA appeared to be seeking “special standing” in the case. Standing is a legal term for the “harm” suffered by one person, which entitles that person to sue in court to have it rectified.
Strawbridge admitted that race is almost never the sole determinant of a college admission decision. He argued, however, that the fact that it is one factor tips the scales unfairly for at least some applicants.
“In a zero-sum game, it makes no sense. If we consider race and argue that a racial classification – which is highly disfavored in law due to its necessarily invidious nature – will be used, it must clearly be doing some work “Strawbridge informed Jackson.
Affirmative action schools, according to Strawbridge, are “making decisions about who it will admit based, at least in part, on the applicant’s race Some races are given an advantage. Some races receive no benefit.”
During the early stages of Monday’s argument, Jackson was one of the most vocal justices, going back and forth with Strawbridge on several occasions.
The Supreme Court is hearing two cases in which SFFA is suing a major university over its admissions policy that includes race as a factor. The first case was filed against the University of North Carolina on Monday. Following the UNC case, the court will hear a similar case against Harvard.
According to SFFA, “is a coalition of prospective students and applicants to higher education institutions who were denied admission, their parents, and other individuals who support the organization’s goal and mission of eliminating racial discrimination in higher education admissions. The SFFA has members all over the country.”
In its initial filing against UNC, the group also stated that it is comprised of at least one White student who was denied admission to the university. The Harvard case, which will be heard later Monday, focuses on how Harvard’s policies allegedly disadvantage Asian American applicants.
Those who support the use of affirmative action in college admissions point to numerous previous Supreme Court precedents that say it is legal.
Supporters of affirmative action argue that it is also critical to ensure diversity at universities, which serve as steppingstones to key leadership positions in society.
Given that she is part of the three-seat liberal minority, Justice Jackson’s recusal from the Harvard case is unlikely to have an impact on its outcome. However, Thomas’ failure to recuse himself in cases involving the 2020 election or January 6th could have an impact on the outcome of those decisions. And there’s nothing we can do about it right now.