WSJ Supreme Court reporter weighs in on potential rulings of SCOTUS affirmative action cases

ess Bravin, Supreme Court reporter at The Wall Street Journal, joins Yahoo News’s “Skullduggery” podcast to discuss two Supreme Court cases regarding race-based college admissions, which are set to start oral arguments on Monday. Regarding a potential ruling by the conservative court, “If you can overrule Roe v. Wade and move on, this is relatively small potatoes to [the Supreme Court],” says Bravin.

Video transcript

DANIEL KLAIDMAN: Is this case kind of a zero sum game? I mean, is it possible that the challengers could prevail without the court overturning these big precedents? Grutter in particular.

JESS BRAVIN: Well, anything is possible. But is that likely? I mean, this court showed us earlier this year when it overruled Roe v Wade that it is quite willing to correct the errors that predecessor courts made. And this is one and this is an area of race conscious policy that has been a real division on the court, even from even from Bakke in 1978. I mean, Roe v Wade in 1973, that was a 7 to 2 decision and you had a spectrum of justices in the majority voting for that.

The race cases, the affirmative action cases, have all been much more closely divided. Bakke was a 4-1-4 case. Where there were four justices who said it is a colorblind requirement, you can't use race at all. There were four justices on the left who said having an actual quota, which is what the University of California Davis Medical School had, they had 16 seats in their class set aside for underrepresented minorities. An actual quota is OK to remedy past historical discrimination. And you had one justice trying to split the difference with you can use this sort of ambiguous use of race, an undefined plus factor.

Then the Michigan cases, again, were very closely divided. And the majority opinion in the Grutter case, which upheld Bakke, was a bit ambivalent. Justice O'Connor who wrote that opinion approved the use of it, but said it's been 25 years since Bakke. In another 25 years we expect it won't be necessary to use race. She said minority applicants have improved. Their credentials are now better than there were back in the '70s or '60s and maybe we expect they won't be in 25 years.

So even the majority there was ambivalent about this practice. And so the case is brought more recently by Edward Blum, the same guy who's behind the two cases we're hearing at the Supreme Court now at the University of Texas. He expected the court had shifted enough to the right to overrule those. He fell short because Justice Kennedy turned out to be unready to do that. But now he's gone. Justice Kennedy is gone. And I think that this court they've made it very clear, the Conservatives, that they're not comfortable with this practice. They think that it moves in the wrong direction and it's not provided by the Constitution.

So I think it'll be very difficult to expect-- I don't think they want to. I mean, if you can overrule Roe v Wade and move on this is relatively small potatoes to them. And there's another difference too, Dan, which is this as was indicated by that Michigan voter initiative that ended affirmative action in the state after they won the affirmative action case, at least partially. California in 2020, sort of the heartland of blue America you might say, they defeated a legislative voter measure to reinstate affirmative action. California ended it in 1998, the Proposition 109. And then the legislature thought maybe the state is ready to restore it. No, they weren't in 2020 the same year the they voted overwhelmingly for Biden and the Democratic slate.

Poll numbers show that majorities of basically every identifiable group Republicans and Democrats, Blacks, Hispanics, whites, Asian-Americans, majorities of all of them, although to different numbers, don't agree with using racial preferences in college admissions. And yesterday there was a roundtable with reporters held by Lee Bollinger, the defendant in the Michigan case is now the President of Columbia University. And I asked him, why is there such a division between the public and the leadership of education in America regarding this practice? And he basically said, I don't know.

I know why. I mean, maybe the questions not being asked the right way. But we think it's very important and the public doesn't seem to see it the same way. So I think this case is a lot easier to envision in some ways them overruling the precedents than Roe was.