As the Washington Post reported two weeks ago, Justice Ketanji Brown Jackson spoke “twice as much as her next most loquacious colleague” during the Court’s first session of eight oral arguments. Adam Feldman, who provided the word counts that the Washington Post used, reports that Jackson was the most talkative justice in the UNC racial-preferences case argued on Monday. By Feldman’s tally, she spoke 2,894 words—more than 1,100 words than the next most active justice, Justice Sotomayor. Jackson’s tally is not only more than 60% higher than Sotomayor’s; she singly accounted for 23% of the total words said by the nine justices.
Jackson’s extraordinary loquaciousness might be welcome if she were asking especially good questions. That does not seem to me to be the case. Baffled by some praise I’ve seen of Jackson’s questioning in the UNC case, I figured I’d offer my own review. So let’s take a look at Jackson’s questioning of SFFA’s counsel:
1. Jackson leads off by asking SFFA’s counsel “whether or not race is being used singularly to let people in.” (Transcript 11:9-12). Her question bespeaks the same fundamental confusion as Sotomayor’s. If race were “being used singularly”—independent of all other considerations—that would mean that UNC is admitting every African-American applicant. Obviously, no one contends that is the case. Equally obviously, the fact that race is not “being used singularly” does not speak meaningfully to the question whether UNC is engaging in racial discrimination in support of some applicants and against other applicants. To answer that question, one needs to inquire whether there were applicants for whom (as SFFA’s counsel put it) “race made the difference” in their getting accepted—applicants, in other words, who would not have been admitted but for racial preference in their favor. Even UNC’s expert agreed that there were such applicants.
2. Jackson spends several minutes (five pages of the transcript—pp. 18-23) trying to argue that the individual members of SFFA don’t have standing to challenge the racial discrimination against them. This is an argument that UNC, for good reason, never made, as it finds no support in Supreme Court precedent. (UNC made a very different argument that SFFA lacked standing because it supposedly “lacked genuine members when it sued.”)
Jackson’s argument is a sorry jumble. She argues first that UNC “is not requiring anybody to give their race at the beginning.” So what? Is an employer free to discriminate on the basis of race—and does a victim of such discrimination lack standing to challenge that discrimination—if the employer does not require applicants to “give their race”? Absurd.
Jackson argues next that standing might exist only in cases like Gratz v. Bollinger (2003) in which the plaintiff was challenging “a set-aside.” Here, by contrast, “No one’s automatically getting in because race is being used.” But Gratz can’t plausibly be read so narrowly, and the Court’s opinion the same day in Grutter v. Bollinger (2003), which involved the University of Michigan’s “highly individualized, holistic review of each applicant’s file,” repudiates Jackson’s theory. Both Gratz and Grutter invoke a 1993 ruling in which the Court, citing Regents of University of California (1978) and other precedents, states:
Singly and collectively, these cases stand for the following proposition: When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.
It’s difficult to imagine that Jackson (or anyone else) would be inclined to think that an African-American applicant didn’t have standing to challenge a college’s multifactor admissions test that included a racial preference for whites.
When SFFA counsel pointed out that Grutter defeated Jackson’s “set-aside” limitation, Jackson replied: “But you’ve said Grutter needs to be overruled. So we can’t—I don’t think we can use that decision.” Jackson’s reply is obtuse. A party can obviously seek to overturn one holding in a case without rejecting other parts of it. Plus, the standing holding in Grutter itself rested on earlier precedent. Jackson somehow tells SFFA counsel that she is “worried that you’re asking us for a special standing rule,” but it is Jackson’s approach that would be a sharp deviation from precedent.
To compound the confusion, Jackson states that she thought that “anyone [of any race] could get a point for racial diversity.” I find it difficult to understand how anyone who read the briefs in this case could think that. SFFA states in its opening brief what SFFA’s counsel repeated at argument:
For more than three decades, UNC has awarded racial preferences to “underrepresented minorities,” which UNC defines as African Americans, Hispanics, and Native Americans. Asian Americans and whites don’t receive a racial preference; UNC doesn’t consider them “underrepresented” because their percentage at UNC is higher “‘than their percentage within the general population in North Carolina.’”
UNC does not contest this elementary fact. (See UNC brief at 7 & n. 1.)
3. Jackson asks whether “we have a constitutional violation” when a student “checks a [race] box … and the university … doesn’t take it into account in any way in the application.” The obvious answer to this utterly irrelevant question is no, and Jackson’s stated concern that students might otherwise “have to mask their identities when they come into contact with the admissions office” is bizarre. Indeed, Jackson overlooks that it is Asian Americans who often try to “mask their identities” (e.g., by refusing to check the race box) in order to escape the detrimental use that they fear the university will make of their race. (Transcript 31-32.)
4. Jackson spends several minutes trying to argue that if a university can’t give racial preferences (“can’t value race”), that might “have the potential of causing more of an equal protection problem than it is solving.” She presents a long hypothetical involving two applicants. One has a long family legacy of attending UNC, and the other is the descendant of North Carolina slaves. Each states that he would like to “honor my family’s legacy by going to this school.” Jackson asks that if it’s okay to give the first applicant a legacy benefit, why isn’t it an Equal Protection violation to exclude consideration of the second applicant’s race? (Transcript 64-69.)
An Equal Protection rule that does not allow race-conscious admissions would still allow an admissions office to credit the evident socioeconomic diversity that the second applicant would bring. Absent evidence that UNC allows legacy admissions because of their racially disparate impact, there would be no Equal Protection violation in disallowing a factor (race) that the Equal Protection Clause is deemed to forbid while allowing a factor that it allows. (UNC’s use of legacy preferences, though, might well undermine its claim to regard racial diversity as a compelling interest.)
Various of the confusions above recur, including in Jackson’s softball questioning of other counsel.