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Supreme Court to Rule on Key Cases with Critical Impact; Supreme Court Guts Affirmative Action in College Admissions. Aired 10- 10:30a ET

Aired June 29, 2023 - 10:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[10:00:00]

LAURA COATES, CNN CHIEF LEGAL ANALYST: Well, how does it compare to, say, somebody who's a veteran, somebody who is a legacy student whose parents went to the university? How about -- what does it mean -- someone who is a violinist, for example, or an athlete or any other number of factors that are played in admissions processes?

I will note that Corporate America and the military all have had a hand in expressing their views in this very consequential decision, because they all suggest what would be the parameters and impact on the greater atmosphere.

It is likely and it's expected that the Supreme Court will continue to find the nuances of race-based admissions, or race as a factor in the admissions process. But we do not yet know how they will come down in a case that has been continuously a part of successive Supreme Court confirmation hearings, let alone even ballot initiatives in places like California.

JOHN BERMAN, CNN ANCHOR: All right. Just so everyone knows, we are now in the zone. It is after 10:00 A.M. So, these rulings from the Supreme Court could come any second now. We know there are two boxes. The rulings are delivered in boxes in writing there. That means there are at least two decisions today. There could be as many as four or so, because you can pack a couple into a box, but at least two.

Elie, Laura was talking about the decision on affirmative action. The gay rights decision in Colorado is also fascinating because of how the justices will choose to write about this. This has to do with whether someone has the right to refuse service because someone is gay. What are you looking for in terms of how the justices frame this? Because if they say you can refuse for X, why not Y and Z?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Right. So, what's so interesting here is we have tension, conflict between, in this case, the First Amendment right to free speech, the web designers arguing it would violate my free speech rights to compel me to create websites for gay weddings when I don't agree with them, versus, on the other hand, non-discrimination. Colorado, the state of Colorado has a law that prohibits discrimination against people based on LGBTQ status.

We had a similar case relating to a bake shop, Masterpiece Cake Shop, that came out a few years ago, but that was brought on a slightly different basis. That was based on religious freedom versus anti- discrimination. This is First Amendment versus non-discrimination. So, we'll see.

And that the dilemma, I think, here for the Justices is exactly what you said, John, which is if you allow this person to say, well, it violates my First Amendment right to make a wedding site for a gay couple, where does it end? What if someone objects to interracial couples? Can they stop there?

And so I think we're going to see the Supreme Court sort of having to draw some very fine lines and thread, some meals.

And just bigger picture, what we're about to see from the Supreme Court, what's going to happen today is a great example of how, what happens in that marble building with the big pillars, with all the legalese, has a real effect on the real lives of hundreds of millions of Americans when you take it all together.

SARA SIDNER, CNN ANCHOR: Just in general, it's significant that they take these cases because they don't have to take the case.

HONIG: Exactly.

SIDNER: So, when they take them, we all expect there's something to be either new or them to lay down the law that, no, the law of the land that is in place stays.

HONIG: They take under 5 percent of all cases brought to them, so they take them for a reason.

SIDNER: All right. Let's go to David Chalian. There is another -- okay, we're just learning that the case that we have is a case that has to do with religion. It is a case with a postal worker who says that they should not have to work on Sundays because of their desire to practice their religion. We are waiting for the court -- that's right. We're waiting for the court to decide that. They have made a decision. Now the question is, what is the decision?

Can you give us some example, Elie, of what this case is all about? There's a lot of sort of religious freedom cases that have come up.

HONIG: Two big ones today. So, this case involves a Pennsylvania postal worker, federal employee, works for the U.S. Postal Service, who, when Amazon came on the scene, and we started -- and the U.S. Postal Service started making deliveries on Sunday, this postal worker, who's deeply religious said, I don't work on Sundays because of my religion. And he went through a sort of back and forth with the Postal Service and he ended up leaving his job.

And the question presented to the Supreme Court is, yes, we have to accommodate religious exercise, free exercise of religion under the First Amendment, but if it's a government job, just how far do they have to go?

BERMAN: Elie, I want to step in for a moment because we're just learning now that decisions on the affirmative action cases have come down. We do not know, again, what the decisions are just yet, but let's go to Laura Coates for that.

This, I think, Laura, it is safe to say, is the biggest case facing the court that could have the widest reaching implications.

COATES: That is extraordinarily true. And we are all keenly aware of what the consequences could very well be.

We know that we do not truly live in a society where race is never a consideration or a factor or thought of. And the courts have had to wrestle with this idea.

[10:05:00]

Remember infamously Sandra Day O'Connor, as a justice, spoke about an almost timeline of when we would reach a point in time that we'd no longer consider race. And you had Justice Roberts talk about the idea of the way to stop discriminating on the basis of race is to do just that. You've heard conversations in the voting rights space about not removing an umbrella when you're in a storm because you're not getting wet.

And so we've seen racial dynamics play within this Supreme Court. A really big factor was in the confirmation hearing, Justice Ketanji Brown Jackson, was whether she would recuse herself in this case because of her ties to Harvard, not just simply as a student but in terms of a board-type relationship.

And so they had these two separate cases, one the private school that is Harvard, the other involving, of course, University of North Carolina. And you have the added dimension of whether racial minorities, including Asians, have been detrimentally impacted by affirmative action as well.

So, right now, we're on a kind of waiting with bated breath about what the Supreme Court will ultimately decide given the very evident conclusion we all should reach, which is, frankly, race continues to be one of a many factored analysis in any realm of our society.

KATE BOLDUAN, CNN ANCHOR: Just a note for the control room, let me know when I can -- yes, that's what I was thinking. Okay, I'm going to jump -- let's go over to Jessica Schneider. We know we have a decision when it comes to the affirmative action case, the university's case. What is it, Jess?

JESSICA DEAN, CNN JUSTICE CORRESPONDENT: Yes, Kate. So, as was expected, the Supreme Court is saying that these affirmative action programs, particularly at Harvard and UNC, but this will affect all colleges and universities, they say that affirmative action violates the Equal Protection Clause. So, that essentially means that colleges and universities will no longer be able to consider race as a factor in admissions.

This is the decision that seemed to be hinted at, at oral arguments here. In particular, the justices seizing on the decision back in 2003, which had allowed for affirmative action, race as a factor, but had sort of said, maybe affirmative action won't be needed in about 25 years. We're just about at that 25-year mark from 2003. So, the justices here, the conservative justices, ruling that affirmative action will be no more at colleges and universities.

We have to dig a little bit more into the case to find out if race can even be considered holistically, even if they employ race-neutral factors, if colleges and universities can still look at race in some way, but they cannot use it anymore as a factor in the admissions process, as many college -- most colleges and universities have done. It appears that Chief Justice John Roberts wrote this opinion. In part, he said, eliminating racial -- let me start over. Eliminating racial discrimination means eliminating all of this.

And this was sort of a point that the chief justice had really hammered home on in oral arguments. He said, if we want to end racial discrimination, we shouldn't even consider race. That has been his view for a long time in other opinions he's written and it's something that we expected in this decision as well.

So, I'll head back to looking at how this opinion shapes up. But the takeaway here is that, as was expected, the Supreme Court ruling that colleges and universities can no longer consider race as a factor in their admissions, they can no longer practice affirmative action. Guys?

BOLDUAN: All right, jump back into it, Jess. Really interested to hear the wording, as you're saying, the wording from in the majority opinion, and also to hear if any of the dissents are read from the bench, which some of the justices do on really monumental cases.

Elie, violates the Equal Protection Clause of the 14th Amendment. Just give us a moment of what a big deal this is, because it looks like it's 6-3 and it's no longer -- affirmative action in higher education is no longer.

HONIG: This is going to change everything about the way that colleges handle their admissions. I think Jessica hit on one of the key nuances that we have to dig through and find out, which is what does the Supreme Court say about what we call race-neutral admission processes? This was a big topic of discussion and argument at oral argument a few months ago. Can colleges consider other factors other than race, which may help them generate a racially diverse class?

BERMAN: ZIP Code.

HONIG: ZIP Code, economic status, is someone a first generation member of their family? Can those things be considered? That was sort of a hot topic.

And one thing that's really interesting to note, when you see these decisions where the Supreme Court says, well, we're in a better place now, right, because as Jessica mentioned, I think Laura mentioned earlier, back in the last major affirmative action case in 2003, the justices said, well, there has to be some sunset on this, and we're looking at about 25 years. Here we are 19, 20 years later. And so the question is, well, are we in a better place? But the dilemma there is, are we in a better place because of this policy? And the famous quote on this came from Justice Ruth Bader Ginsburg in a voting rights case where, essentially, the majority, Ginsburg was dissenting, as she often did, the majority said, we don't need this particular voting rights protection from the Voting Rights Act.

[10:10:12]

And Ginsburg said, that's like throwing away your umbrella in a rainstorm because you're not getting wet.

BOLDUAN: Actually, I wrote that down this morning because I was thinking about it.

HONIG: Yes. And it applies to this too. Is the reason that affirmative action is no longer necessary, according to the majority here, because it's already done its work, or is there a continuing need for it? But, again, we need to dig in here and --

BOLDUAN: It's a really thick opinion.

HONIG: Yes.

BOLDUAN: I just pulled it up online and it's a really thick one.

HONIG: And college administrators and admissions officers are scrutinizing this for what can we still do to promote diversity.

SIDNER: And I think there is already precedent here because California and Michigan both had basically abolished affirmative action. It could not be used as a factor or the deciding factor in admissions. And they've all seen their diversity numbers drop since then.

I'm going to go to Laura Coates quickly on this. This has, I think, been held for 40 years that affirmative action has been in place. Now, they have upended that stare decisis, as you attorneys call it, it's no longer in this case. What do you make of this decision and what it means to those going to college now and to the universities themselves?

COATES: Well, I don't think we can even overstate the role that race has played in our society as a country. And it also is a very big part of one's identity. And so part of the college admissions process is the practice of a student, a potential applicant, detailing why they believe their identity and being ought to be an additive addition to a particular school.

Now, it will be very hard for an admissions process and an admissions office to delineate between how a student views themselves and their identity and what can now be considered in practice. An example that came up during the Supreme Court oral arguments is the idea of, well, what about a student who is writing about their personal identity as it relates to their race. Is the admissions office to look at that essay, burn it, throw it out, and say, I cannot see this here because it deals with race?

And I want to read for you a quick notion here. I know we're short on time, but the monumental consequence of the decision cannot be overstated. Everyone from Apple to Ikea, to Starbucks joined in, in brief, to talk about racial diversity, improving decision making by increasing creativity, communication and accuracy. Some of the largest law firms in our country spoke about the private bar in the legal profession benefiting from a diverse pool of talent from which to recruit. Retired admirals, a group of them and generals, also told the court that, quote, diversity in the halls of academia directly affects performance in the theaters of war.

And so for those who believe that the confines of affirmative action in the decision is going to restrict be here only in the halls of Harvard or perhaps University of Carolina, you have these amicus briefs and details about the impact more broadly and the potential domino impact of this decision.

BERMAN: All right. Laura, stand by for a minute, because, obviously, what is going to matter now that we know that the courts have basically overturned the idea of affirmative action or considering race in college admissions is how they state it specifically, what are the parameters, the exact language.

Let's go back to Jessica Schneider, who's got some quotes here. Jessica, what have you learned?

SCHNEIDER: So, John, that's key because this opinion does contain a bit of nuance here. Broadly, colleges and universities, they can no longer have applicants check a box that says which race they are and they can't expressly consider the race. However, within this opinion, which is a 6-3 opinion led by the conservatives, they do say that nothing in this opinion should be construed as prohibiting university from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise.

So, that indicates, and that was a question that did come up at the arguments, can applicants mention their race at all in their essays, in other things that they submit, in letters of recommendation and the like? This is saying that, in a broad sense, universities can look at race when it pertains to how it has affected someone's life, but they can't really have someone check a box saying exactly what race they are.

So, in the broad sense, they're saying that the way UNC and Harvard and other colleges and universities across the country have operated up to this point, they say that that violates equal protection, but they're not completely banning universities and colleges from considering race in the broad sense, and particularly how someone's race has affected their life.

[10:15:04]

So, what's interesting here, we are waiting for more dissents from the bench because, so far, we've just been hearing from Chief Justice John Roberts' reading parts of the opinion, but I will tell you that Justice Sonia Sotomayor has written a fiery dissent here, where she says that these rules, this rolls back decades of precedent and progress. She says that this will have a devastating impact.

And that's something that throughout the months of covering affirmative action, devastating impact is a theme that came up again and again. These universities have already told the court in amicus briefs, even the universities in California and Michigan who haven't been allowed to use affirmative action for years, they say that there really is no substitute for affirmative action. They've tried to diversify their campuses, but they say, in large part, they've been unsuccessful in using other race-neutral methods.

So, Justice Sonia Sotomayor putting a point on that, saying that she believes this will have a devastating impact, but, obviously, a 6-3 decision telling colleges and universities you can no longer explicitly use race as a factor in your admissions policies.

BOLDUAN: And let's dig into this. Jessica, thank you for pointing this out. Continue digging through it. I found that it's page 39, Elie is where she's reading from. And I was looking at it. The words matter and the chief justice wrote this opinion. Let's read them because it's important.

At one point he writes here, both programs lack sufficiently focused and measurable objectives, warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping and lack meaningful endpoints. We have never permitted admissions programs to work in that way and we will not do so today.

At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.

HONIG: So, that's a crucial passage because that gives some guidance on what is still in play. And, again, the key term here is what we call race-neutral factors. So, we're not checking boxes. Students are not required to say what race they are. And one of the things the Supreme Court objects to, and was objected to an oral argument, is giving a specific numerical bump based on race.

However, there still are things, as the passage you just read, Kate, makes clear, that colleges can do to try to generate diverse classes for themselves. For example, you can look at what's in a student's essay. You can't restrict what students write in an essay. And, yes, colleges can consider that. There are other race neutral factors. Economic background, is someone first generation that colleges can take into effect?

What I think is really interesting is there is a recognition here, even in the majority, which is striking down affirmative action, that racial diversity is a virtue, it is a value. They're not saying it's a bad thing or it's meaningless. The question is, what are the constitutional means to get there? And that's sort of the dilemma that they're really grappling with here. SIDNER: When is precedent not precedent? I mean, everyone says, I am not going to change the precedent, the thing that has been around for 40 years, 50 years, 60 years, and then they do. So, what's happening here?

HONIG: Here's the real answer. Precedent is precedent until five justices don't want it to be precedent anymore. I don't mean to take that --

SIDNER: Plain and simple.

HONIG: I don't mean that to be --

BERMAN: And, by the way, in this case, it's six. Just so people know the contours of this ruling, it's 6-3 in North Carolina, and I believe it's 6-2 with the Harvard case.

BOLDUAN: Because didn't -- Jackson had to recover.

HONIG: Because she was a member of the Harvard Board of Governors or something to that nature.

Every time somebody is up for a nomination to the Supreme Court, we see this happen every time. But one of the questions is, do you believe in precedent? The answer always, of course, I believe in precedent. Do you believe that at times precedent should be overruled? Of course, Brown versus Board of Education overruled, Plessy versus Ferguson ended Jim Crow in this country.

So, the question then that always gets posed is when? And they always try to come up with these quasi legal formulations. They talk about super precedent, which is something that's been invented, but the practical answer is when five or more justices decide that it's time. And that's what's happened here with the six -- I think, fairly predictably, six conservative justices saying time's up on affirmative action, although as we said, important to note, there are other race- neutral measures that are still constitutional. And the three justices, as just said, dissenting in passionate fashion.

BOLDUAN: Just one more sentence that I just found very close to what we were talking about. The chief justice writes, in other words, the student must be treated based on his or her experiences as an individual, not on the basis of race.

HONIG: And race is part of that.

BOLDUAN: Right.

HONIG: Yes, but not solely.

BERMAN: Yes, I'm very interested to see how much leeway that gives schools to interpret that.

Tony Chen joins us now.

[10:20:00] He's an associate professor of sociology at Northwestern who is currently writing a book about the history of affirmative action. He's also the author of The Fifth Freedom, about affirmative action policies in employment. I should also note he did file an amicus brief in these cases. Professor, great to see you again.

So, talk to me about, I think, the scope of this decision in your mind, what it changes now.

TONY CHEN, ASSOCIATE PROFESSOR OF SOCIOLOGY, NORTHWESTERN UNIVERSITY: Well, the decision just came out. It's been out for ten minutes and I haven't had a chance to go through it carefully.

But my initial reaction is that this decision marks the end of an era. Affirmative action in college and university admissions do raise questions for some people these days but it's unquestionably the legacy of a storied moment in our history when civil rights protesters were braving police dogs and water cannons into the streets of Birmingham, and when the inspired oratory of MLK was ringing forth from the steps of the Lincoln Memorial. Since then, SCOTUS has put tighter and tighter bounds on affirmative action, but this decision sweeps away affirmative action altogether, it would seem, first reading.

SIDNER: Can I ask you a quick question about the way in which this is put forth? Because, initially, it was sort of white students against minorities, but, recently, it's been Asian-American students who have been put at the forefront of this. Why that change obviously done on purpose?

CHEN: Yes. So, I think that using Asian-Americans as a focal point for this litigation has a lot of ideological appeal, especially for critics of affirmative action. It's true that Asian-Americans have been sort of experiencing a wave of anti-Asian hate in the last three or four years, but at the same time, Asian-Americans are often constructed in our society as a model minority. Asian-Americans are seen as people who play by the rules, they work hard and they do so, and they get ahead, and their outcomes seem to bear that out.

So, if Asian-Americans aren't being treated fairly or in the right way by the admissions process, then something must be wrong with the admissions process. So, I think that critics of affirmative action sort of understood this, and Asian-Americans were selected for that reason.

SIDNER: All right.

BOLDUAN: Tony, thank you so much for that. I want to get back over to Laura Coates. I was just taking -- it was just handed an excerpt, Laura, from the dissent written by Justice Sonia Sotomayor. Let me read this.

The result of today's decision is that a person's skin color may play a role in assessing individualized suspicion but it cannot play a role in assessing that person's individualized contributions to a diverse learning environment. That indefensible reading of the Constitution is not grounded in law and subverts the 14th Amendment's guarantee of equal protection.

COATES: I think there are many people who would look to Sonia Sotomayor, who has spoken about herself as sort of the, quote/unquote, model affirmative action recipient. She contrasts herself quite frequently with Justice Clarence Thomas, both of whom have similar educational backgrounds, but Sotomayor views it as racial sensitivity, and you have Justice Thomas viewing it as racial paternalism.

But I think what she speaks to is this notion of the inconsistency of when race can be used as a factor in some aspects of our constitutional scholarship, and in others, it is treated quite differently, and now even subverted -- subordinated to things like one's legacy status of a student, of a child of an alumni or one's athleticism and beyond.

But I think she speaks to a much greater issue that many people who have been proponents of affirmative action have spoken to for years, and that is the role of race as evident in the course of our history and our present.

And I would note, we speak about precedent and the value of precedent. As recently as 2016, the Supreme Court, for at least the third time, recognized that they wanted to have race as but one of the factors considered holistically. That was a case also spearheaded by Mr. Bloom, who had a part in this particular underlying Supreme Court case as well.

And the reason that's important is because at the time, it was a slight majority from which she was one of the only who is remaining now in that slim majority, it tells you the power of an election and nominations for the Supreme Court bench.

We focus a lot on Roe v. Wade as but one of the factors that would factor in to a selection of a Supreme Court justice. But affirmative action has been very much part of the conversations around the criteria for which a Supreme Court justice is selected. And now we see a total shift even since 2016.

I'll be very curious as well to hear more from Justice Thomas, who has been a staunch opponent of affirmative action.

[10:25:00]

He has believed that it was something that made people look to him with skepticism and an academic side eye, that he somehow was not prepared or worthy to be in his spot. He has believed that it has carried throughout his entire career and should be stopped. Contrast that with fellow Princeton alumni Sonia Sotomayor, who speaks about the notion of giving a recognition of one's holistic identity as part of it.

I will say, of all the passages we have read here today, I'm still scratching my head, as many admissions officers will be. So, I can take into consideration race as part of the student's experience, but their actual racial group or category cannot be contemplated or taken into account. You're going to have a situation that has often been part of the admissions process to, quote/unquote, equal students, perhaps in academic scoring, SATS or ACTS, perhaps geographically, perhaps even in the instruments that they play so well for the symphony. And what will be the deciding factors? The Court here today says it cannot be race, but the other factors could very well remain.

I'm also curious to hear from Secretary Lloyd Austin, who has spoken quite vociferously about the role of diversity and preparedness in the military. And, remember, we do select and recruit and we do think about people who are coming out of colleges in preparation for the military, as is Corporate America.

And so while the actual language of the Supreme Court will come across as very intellectualized and esoteric, as if in a classroom, in the reality, how will this work? How will you be able to have certain color blindedness, but then at the same time allow to take into account one's experiences when race has been a part of that? That's the devil in the details of every affirmative action case from then and now.

And, Sara, you eloquently pointed out the idea of the statistics showing out what often happens when affirmative action has gone away. In places like California, you've seen following Prop 209, which had on the ballot initiative, the inability of state schools to take into consideration race, you did see a falling off of the ability to have minority applicants be selected and also apply.

Now, there's been a number of incentives to have in recruitments for people to come to school. There's going to be a lot of factors to take into consideration. But this opinion, make no mistake about it, will change the landscape of education and this is what the majority has asked for.

BERMAN: All right. Laura, Elie, stand by for a minute, because even as we try to unpack the legal implications here and the enforceability, as Laura was talking about just there, this is already having some political reverberations and will no doubt have much more.

And for that, let's bring in CNN Political Director David Chalian. And, David, first off, where does affirmative action stand right now in polling and how do you see this developing as a political issue literally over the next several minutes, if not hours and days?

DAVID CHALIAN, CNN POLITICAL DIRECTOR: It yes, this is clearly going to be sort of a political football that gets injected into this campaign season. And, obviously, the reverberations are going to go far beyond just the universities here directly impacted by the case into society more broadly.

But, John, to your point, I mean, polling on this, like polling on many things, is sort of how you phrase the question. But, overall, what you see in recent polling on affirmative action is there's more support among Americans on the side for discontinuing these programs, that it should not be a factor in college admission than you see for support that it should be. And, of course, like we talk about in polling all the time, this splits quite differently along racial lines or partisan minds. Democrats are far more in favor of using affirmative action in college admissions. African-Americans are far more in favor than white Americans are.

So, this definitely splits along some of our fault lines in American politics, which is why you're going to see as the responses and reactions come in from the candidates seeking the Republican nomination race, from the White House and the broader democratic universe, you're going to see a dividing line here form, no doubt.

I remember, though, this has been an issue in our political discourse for quite some time. You guys may remember when Barack Obama was first running for president back in 2007, he was asked about this, specifically about his daughters and whether affirmative action should apply to them when they were old enough to apply to college. He said he didn't think his daughters, who were going to have every advantage in life, should be benefited by an affirmative action program. But, remember, he went on to discuss how that is not true for all families, and specifically black families in America.

[10:30:04]