The Supreme Court is taking pains to make sure its first Black female justice gets to take part in at least some of the looming arguments over affirmative action policies.
The justices announced recently that two momentous cases, one involving Harvard University’s admissions policy and another centered on the University of North Carolina, will now be heard separately.
Originally the cases were to be heard together. They both involve the same core issue and even have the same plaintiff, Students for Fair Admissions.
But that was before Justice Ketanji Brown Jackson joined the court.
The judge, who sat on Harvard’s Board of Overseers, had promised during her confirmation hearing to recuse herself from taking part in the case involving that school.
By splitting the cases the court ensures she can play a role in the UNC case.
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In theory, that could produce strange results where one school’s policy is struck down while the other’s is upheld — but legal experts doubt that’s going to happen in these cases.
“Here, it won’t make a difference. The most likely scenario is Harvard will lose 6-2 and UNC will lose 6-3,” said Ilya Shapiro, senior fellow at the Manhattan Institute.
The two cases come to the high court 19 years after the last major affirmative action ruling, where the justices upheld limited use of race in school admissions — but warned there was a time limit on how long that could go on.
“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” Justice Sandra Day O’Connor wrote in the chief opinion.
Students for Fair Admissions is back six years before that deadline, saying the time has come to end race-focused preferences, arguing they are now being used at schools like Harvard to benefit some racial or ethnic minorities at the expense of others — namely Asians.
In both cases, lower courts have sided with the schools.
The splitting of the cases could create a situation where the court rules 5-4 to overturn the North Carolina policy but deadlocks 4-4 on Harvard’s policy, which would leave the contradictory lower court ruling in place.
But legal analysts expect the six-justice GOP-appointed majority to control the decisions.
The cases are set to be argued during the court‘s next term on Oct. 31.
Justice Jackson, under questioning by Sen. Ted Cruz, said during her confirmation hearing that she planned to recuse herself from the Harvard case.
“That is my plan, senator,” she told the Texas Republican and fellow Harvard Law School graduate.
The high court does not have binding rules on recusals, leaving the decision up to each justice to decide if they have a connection to a party that compels them to step aside for that case.
Maurice Cayer, a professor at the University of New Haven, said it is not surprising the high court separated the arguments because the Harvard case deals with the Civil Rights Act of 1964 and the UNC case centers on the Constitution’s 14th Amendment.
“Two different filings, and then you layer on Justice Jackson recusing herself because when she was affiliated with Harvard, she was on a board that helped to set policy … so that makes perfect sense,” he said.
But Josh Blackman, a professor at South Texas College of Law, said it’s not common for the court to separate the arguments after previously consolidating them.
“This move is fairly rare, but I think was needed to ensure that Jackson could at least participate in the UNC case,” he said. “The court will probably hear the UNC case first, and after that argument concludes, Jackson will leave the bench, and the Harvard case will begin.”
The cases are Students for Fair Admissions v President and Fellows at Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina.