Can Justice Ketanji Brown Jackson Save Affirmative Action?

The Supreme Court is hearing oral arguments today on two cases challenging the constitutionality of race-conscious affirmative action. The plaintiffs are contesting the admissions processes of Harvard University and the University of North Carolina. The plaintiffs suing Harvard University also claim that affirmative action violates federal civil rights law. It has been widely predicted that the Court will rule in favor of the plaintiffs and limit, or even outright prohibit, the use of race in college admissions.

One reason for the doom and gloom about the prospects for affirmative action is that Chief Justice John Roberts, who is the most moderate of the six Supreme Court justices, is on record as disliking race-conscious government policies. In an earlier case on race and voting rights, he wrote: “it is a sordid thing, this divvying us up by race.” He’s also written: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

So, it looks like it’s the bottom of the 9th inning with two outs for race-conscious college admissions. But the newest Justice, Ketanji Brown Jackson, has stepped up to the plate and is swinging hard. She’s been making two arguments, both designed to appeal to her conservative colleagues. (Technically, the Justices merely ask questions during oral arguments, but it’s widely accepted that the questions are mostly thinly veiled arguments designed to persuade the other Justices.)

First, she is suggesting the plaintiffs lack “standing” to bring the case at all. The doctrine of standing is about who is entitled to come to court to make an argument. It has nothing to do with the merits of the case, but if a court rules that the plaintiff lacks standing it dismisses the case, regardless of the merits.

To have standing, the plaintiff must demonstrate that have been injured by the defendant. The injury must be clearly identifiable, not speculative. Brown Jackson pressed the attorney for the plaintiff how, given the complexities of the college admissions process, they could show that any given student was rejected as a result of affirmative action. There are lots of subjective factors that go into admission decisions such evaluations of the student’s character, intellectual curiosity, maturity, and so forth. So, if a white or Asian American student was rejected, the idea that race was the reason for that rejection is pure speculation. This means the plaintiffs don’t have standing to challenge race-based affirmative action.

That’s the kind of argument that usually appeals to conservatives, who like to limit the number of lawsuits brought in federal courts. Conservative justices have dismissed cases alleging racial jury bias and racial discrimination by the police, for example, based on standing. So Brown Jackson is working with the conservative Court that she is a part of—making arguments that they might be sympathetic to.

This is very different from the approach of Brown Jackson’s colleague, Justice Sonia Sotomayor. Her scathing, “in your face” style was credited by some with saving affirmative action in another case, ten years earlier. But this is a very different Court and much less likely to respond favorably to Sotomayor’s approach. Brown Jackson is trying to speak her colleague’s language instead.

She is also trying to appeal to her conservative colleagues by appealing to their favorite theory of constitutional interpretation: originalism. That theory says that the Constitution should be interpreted through the eyes of the people who originally voted for the Constitution and its subsequent amendments. Brown Jackson argued that the same Congress that passed the 14th Amendment and equal protection clause also deliberately targeted money to schools that served Black kids. That would imply that race-consciousness was deemed acceptable at the time the 14th Amendment was ratified.

Nobody knows if Brown Jackson’s strategy will work. There is a lot going against race-conscious affirmative action these days. It appears to lower the chances of Asian Americans getting into top colleges—something that other Justices noted during oral argument. And colleges can sound disingenuous arguing that they need race-conscious affirmative action to create a diverse class when they simultaneously indulge in admissions practices that reduce diversity like legacy admissions.

Nonetheless, Brown Jackson is pursuing the routes most likely to give affirmative action a fighting chance of surviving. And it shows that she is likely to be an effective advocate for her progressive beliefs even while serving on a conservative Court.