I listened to all five hours of the Supreme Court oral argument today while on a long car drive home, and am hoping to post a special podcast tomorrow going over the whole scene, but for me, one single moment especially stands out. Seth Waxman, the primary attorney defending Harvard (a former solicitor general under President Clinton), was going head-to-head with Chief Justice John Roberts about whether race is a “minor” factor in admissions, or a decisive factor, as the defenders of race-conscious admissions were trying to have it both ways all day. Let’s just pick up the dialogue in the middle:
MR. WAXMAN: No, I know. I’m –I’m attempting to answer your question.
There is no doubt that for –as the testimony showed, that for applicants who are essentially so strong on multiple dimensions, so extraordinarily strong on multiple dimensions that they are sort of on the bubble, that they might –they have a real candidate for admission, African American –being African American or being Hispanic or in some instances being Asian American can provide one of many, many tips that will put you in.
CHIEF JUSTICE ROBERTS: Well, people say that, yes, but you will have to concede, if it provides one of many, that in some cases it will be determinative.
MR. WAXMAN: I do. I do concede that.
CHIEF JUSTICE ROBERTS: Okay. So we’re talking about race as a determining factor in admission to Harvard.
MR. WAXMAN: Race in some –for some highly qualified applicants can be the determinative factor, just as being the –you know, an oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player will be the tip.
CHIEF JUSTICE ROBERTS: Yeah. We did not fight a Civil War about oboe players.
I nearly drove off the road in delight at this reply. If the case turns out the right way, I think this will be one of the key moments where Harvard lost the case.
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