Arguments surrounding the use of ‘Affirmative Action’ in the US have once again gained prominence subsequent to the agreement of the US Supreme Court on 24th January 2021 to hear cases regarding the use of this in college admissions. ‘Affirmative Action’ describes policies of a particular group or institution to include certain individuals based upon their gender, race, sexuality, background, or religion, in an area in which they are unrepresented, such as education or a certain type of employment.
In Grutter v Bollinger (2003) the US Supreme Court ruled that affirmative action regarding students from minority ethnic backgrounds in college admissions was not a violation of the ‘equal protection’ clause of the fourteenth amendment. Affirmative action largely began voluntarily by higher education institutions in the late 1960s to make themselves more racially integrated in the aftermath of the extensive Civil Rights legislation passed throughout the previous decade. The decision in Grutter v Bollinger essentially upheld the Regents of the University of California v Bakke case from 1978 which allowed race to be a considered factor in college admissions in the US. The new cases have been brought forward by ‘Students for Fair Admissions’, an organisation led by Edward Blum, a conservative legal strategist, against two colleges: Harvard, and the University of North Carolina. Blum had attempted to end affirmative action policies in 2016 with the case Fisher v University of Texas, but here the Supreme Court ruled to uphold affirmative action 5-4. Although, since then, the ideological make-up of the Court has changed significantly, with Donald Trump making three conservative nominations to the court (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett), meaning the court now has a firm 6-3 conservative-leaning.
The 1978 ruling in the Bakke case was no surprise, at that time the Supreme Court was noted for its liberal stance majority. Many judges held a ‘loose constructionist’ approach, meaning they interpret the Constitution in a modern context, rather than as intended by the Founding Fathers. Many of the judges that had ruled in the 7-2 majority case Roe v Wade outlining a woman’s right to abortion also ruled in the ‘Regents of the University of California v Bakke’ case. Whilst the 2003 verdict was less predictable due to the more conservative nature of the court at this time, it can be interpreted as the court upholding the principle of ‘stare decisis', standing by its previous decisions.
The first of the cases brought by Blum, arguing that affirmative action discriminated against Asian Americans, was defeated in the Boston District Court, and again in the First Circuit Court of Appeals. However, as noted by Nicholas Lemann, for a court that rejects a vast majority of cases, it is unlikely that they are hearing it simply to affirm the lower courts’ decisions. The second case regarding the University of North Carolina was brought directly from a federal court to the Supreme Court, so as to pair it with the other case. Due to the 6-3 majority that exists, an outcome ruling affirmative action to be unconstitutional is likely. This is a result of the moderate conservative justices who affirmative action cases had formerly relied upon, being less prominent, with Chief Justice Roberts being the closest to holding this status now.
Justice Clarence Thomas was nominated to the Supreme Court by President George H. W Bush in 1991. He is considered one of the most conservative justices on the court, stressing his belief in upholding the original meaning of the Constitution in rulings. The Biden administration has established a commission to investigate potential reforms of the Court, amid accusations of it being merely a ‘political institution’, with its popularity declining. Supreme Court Justice Clarence Thomas has condemned this notion.
Ironically, considering Thomas’ views, one cannot overlook Thomas’ wife, Virginia (Ginni) Thomas. Described simply as an ‘American conservative activist’, the issue of a potential conflict of interest gains attention. Ginni Thomas’ influence became particularly apparent to the public subsequent to events on the 6th of January 2021 with the Capitol Attack, as she showed her support on social media for those in Washington D.C., many of whom later entered the Capitol. She has also been noted as having involvement with many associates of Trump, and there are apparent links between these and a number of Thomas’ clerks, with whom she had direct contact. Ginni Thomas has also been noted for involvement with pressure groups that have brought cases to the Supreme Court; Jane Mayer noted that she was an “undisclosed paid consultant at the…Center for Security Policy, when its founder…submitted an amicus brief to the Court supporting Trump’s Muslim travel ban”. In a time in which there are extensive calls for Supreme Court reforms, many of which stem from the court being perceived as a political institution, and an increasingly partisan one, the potential influence of Ginni Thomas might be viewed as exacerbating the issue.
It has also been noted that Ginni Thomas sits on the advisory board of the National Association of Scholars, a group that has had a degree of involvement in the upcoming affirmative action cases, filing an amicus brief, in the Blum cases. It has been suggested that in the interest of neutrality, either Clarence Thomas cease involvement in the case, or for Ginni Thomas to resign from the board. With the Court having a conservative majority, a new stance on affirmative action is largely anticipated. As this majority will see Clarence Thomas likely play a significant role, the potential influence of Ginni Thomas might be viewed as undermining the integrity of this.
The Supreme Court is also expected to make future rulings upon gun control, religious freedom, and most notably abortion. One potential case is likely to come from challenges to controversial Texas ‘Heartbeat Bill’. It has already been noted that Robert George, who sits alongside Ginni Thomas on the National Association of Scholars, has filed an amicus brief in a Supreme Court case challenging Roe v Wade. However, it is worth noting that the responsibility for the potential conflict of interests does not lie with her, instead of with Clarence Thomas, and it is ultimately up to him to decide whether his involvement in a case is suitable or not. But regardless, if he chooses to be involved in the case regarding affirmative action, for many, the Supreme Court’s decision will lack integrity, due to these issues.
In a way, the situation that the Supreme Court finds itself in is a reflection of the increasingly polarised nature of American politics. It can be argued that the Supreme Court was acting in a political manner in the 1970s, but at this time these ‘activist’ rulings better suited broader public opinion, although now there is greater contention regarding these issues. There is a risk that if Biden attempts to pursue reform of the Court now, this will simply be perceived as an attempt to maintain his political agenda, in much the same way Trump had done in his appointment of three conservative justices. It may change the situation in the short term, but it does little to encourage bipartisan cooperation in the future.
Written by Frances Rigby