Who Are the Lawyers Arguing Affirmative Action Before the Supreme Court?
Two of the top conservative jurists on the Supreme Court, Roberts and Thomas, are arguing for affirmative action. So is Justice Sonia Sotomayor, the New York- and Los Angeles-based justice who made her controversial appearance at the University of California at Berkeley last week as a guest of the Pacific Legal Foundation, a conservative legal group she leads.
Sotomayor had nothing to do with the Berkeley case about affirmative action and was invited by a private university, not the Pacific Legal Foundation, and the Supreme Court has no power to review private university cases or even review cases that deal with public universities.
So, in fact, the University of California, Berkeley is not a government institution that the Supreme Court is going to review, and its decision—at least as far as whether race could be used to determine the university’s admissions policy—is a private matter.
The government is not going to argue anything on its behalf at the Supreme Court except to say whether the Constitution is on its side. And the Constitution is not on our side, and the Constitution has said that only the people have the power to decide whether race could be used to determine the university’s admissions policy.
In addition, the University of California is a private institution that, as far as the Supreme Court is concerned, is acting in conformity with the Constitution. It is exercising its own independent judgment and making its own policy decisions.
The Supreme Court, however, as of this writing, is not deciding anything about private universities.
It is trying to get at the issue of race as a factor in university admissions.
Here is the question. Who is arguing—and how many—are the lawyers? Here are the briefs that may be relevant.
In this brief, filed by the Pacific Legal Foundation, the group is arguing that Supreme Court cases such as Regents of the University of California v. Bakke, 438 U.S. 265 (1978), and Grutter v. Bollinger, 539 U.S. 306 (2003), support affirmative action.
In the Bakke decision, the Supreme Court said that “nothing in the Equal Protection Clause or in the Court’s