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SCOTUS judges review Harvard affirmative action case

Two members of this majority of four judges left the tribunal. Judge Ruth Bader Ginsburg died in September. Justice Anthony Kennedy retired in 2018.

The three dissenters in the case, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, remain on the court. Roberts, a moderating influence on some issues, was a firm vote to limit the use of race in public programs, once writing: “This is a sordid business, it divides us by race.”

The court’s willingness to engage in major abortion and gun rights cases also appears to apply to the court’s new, more conservative composition, as similar appeals had been dismissed in the past.

Like the abortion case, the Harvard case is not divided between appellate courts, which often sparks the High Court’s interest in a case.

The Supreme Court has weighed in on university admissions on several occasions for more than 40 years. The current dispute dates back to its first major affirmative action case in 1978, when Judge Lewis Powell explained the rationale for considering race even as the court prohibited the use of racial quotas in admissions.

In Regents of the University of California v. Bakke, Powell approvingly cited Harvard as “a shining example” of a college that “considers race to achieve the educational diversity valued by the First Amendment.”

Twenty-five years later, Judge Sandra Day O’Connor also invoked Harvard’s plan in her opinion, supporting the University of Michigan law school admissions program.

Now it is Harvard’s agenda in the crosshairs of opponents of race-based affirmative action.

The challenge at Harvard is led by Edward Blum and his students for fair admissions. Blum worked for years to rid college admissions of racial considerations.

The group says Harvard imposes a “racial sanction” on Asian American applicants by consistently rating them lower in certain categories than other applicants and by granting “massive preferences” to black and Hispanic applicants.

Harvard categorically denies that it discriminates against Asian American applicants and says its consideration of race is limited, noting lower courts agreed with the university.

In November, the Boston Federal Court of Appeals ruled that Harvard is looking at breed in a limited fashion, consistent with Supreme Court precedents.

The class that just finished its first year is made up of about a quarter of Asian Americans, 15% black and 13% Hispanic, Harvard says on its website. “If Harvard dropped the race-conscious admissions, African American and Hispanic representation would drop by almost half,” the school told the court, urging it to stay out of the case.

The Trump administration supported Blum’s case against Harvard and also filed its own complaint alleging discrimination against Asian Americans and whites at Yale.

The Biden administration has already dropped the Yale lawsuit and will almost certainly take Harvard’s side to the Supreme Court if the case goes ahead.

Lead counsel on the appeal is William Consovoy, who also represented Trump in his unsuccessful attempt to protect his Manhattan District Attorney’s tax returns.

When the court upheld the Michigan Law School curriculum in Grutter v. Bollinger in 2003, O’Connor took note of the quarter century that had passed since the Bakke decision.

“We expect that in 25 years the use of racial preferences will no longer be necessary to promote the interest approved today,” O’Connor wrote.

O’Connor’s timeline defined 2028 as a potential endpoint for racial preferences. A more conservative tribunal than the one she sat in could advance that expiration date by several years.

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