Ketanji Brown Jackson clashes with anti-affirmative action lawyer during Supreme Court arguments

Justice Ketanji Brown Jackson Monday clashed with a lawyer for a student group seeking to end affirmative action in college admissions, as the justice challenged whether the group has "standing" to sue. 

"Why is it that race is doing anything different to your members' ability to compete in this environment," in comparison to a number of other factors involved in admissions, Jackson asked Students for Fair Admissions (SFFA) lawyer, Patrick Strawbridge. 

"It's in the context of all of the other factors…the admissions office is looking at," Jackson added. "You haven't demonstrated or shown one situation in which all they look at is race. They're looking at the full person." 

Jackson also said that SFFA seemed to be looking for "special standing" in the case. Standing is a legal term for the "harm" suffered by one person that allows the person to sue in court to have it remedied.

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Strawbridge admitted that race is almost never the only factor in a college admission decision. However, he argued that the fact it is one factor that tips the scales unfairly for at least some applicants. 

"It makes no sense in a zero-sum game. If we are going to consider race, and we argue that a racial classification – which is highly disfavored at law because of its necessarily invidious nature – is going to be used, it clearly must be doing some work," Strawbridge told Jackson. 

Strawbridge argued schools that use affirmative action are "making distinctions upon who it will admit at least in part on the race of the applicant. Some races get a benefit. Some races do not get a benefit."

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Jackson was one of the most vocal justices during the early stages of Monday's argument, going back and forth with Strawbridge on several occasions. 

Later, she and Strawbridge sparred over whether UNC puts race in front of application reviewers. 

"I didn't see that they were shooting for a particular target, or that there was a goal. I thought, in fact, that as the reviewers went through the process they didn't even know how many other students of color had been admitted," Jackson said. "They're not operating the system, I thought, to reach toward some sort of racial goal."

Strawbridge said the university only implemented its current policy as Jackson described until after SFFA filed its lawsuit. 

Jackson also noted that schools often consider students' non-race characteristics, including whether they are veterans and if they are parents, in admissions. 

"What you're advocating, is that in the context of a holistic review process, the university can take into account and value all of the other background and personal characteristics of other applicants, but they can't value race," Jackson added. "What I'm worried about, is that seems to me to have the potential of causing more of an equal protection problem than it's actually solving." 

Jackson also posed a hypothetical with two applicants, both of whom are from North Carolina – one who's a descendant of slaves and another with generations of relatives who attended UNC. The descendant of slaves, Jackson said, might have his background excluded because that background is "bound up" in his race as a Black man. 

"In almost exactly the same set of circumstances, a student – an applicant – who is African-American and who would like to have the fact that he's been in North Carolina in generations through his family, and they've never had a chance to go to this school, honored and considered, and it's bound up with his race," Jackson continued. "You say, I think, that he's not allowed to say that, and that the university is not allowed to take that into account."

Strawbridge responded that UNC could consider students who would be the first generation in their family to go to college, and if they are economically disadvantaged. But, Strawbridge said, race shouldn't be relevant in the 21st century.

"Is that a basis to make decisions about admission of students who are born in 2003, and I don't think that it necessarily is," he said. 

The Supreme Court is hearing two cases in which SFFA is suing a major university over its policy of including race as a factor in admissions decisions. The first case Monday was against the University of North Carolina. The court is hearing a similar case against Harvard immediately following the UNC case. 

SFFA says that it, "is a coalition of prospective applicants and applicants to higher education institutions who were denied admission to higher education institutions, their parents, and other individuals who support the organization’s purpose and mission of eliminating racial discrimination in higher education admissions. SFFA has members throughout the country."

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The group also said in its initial filing against UNC that its membership includes at least one White student who was denied admission to the university. The Harvard case set to be argued later Monday focuses more on how Harvard's policies allegedly harm Asian American applicants. 

Those who support the use of affirmative action in college admissions cite multiple past Supreme Court precedents that say it is permissible. 

Affirmative action supporters also say it is important to ensure diversity at universities, which serve as pipelines to key leadership positions in society.