Elena Kagan looks pensive in a close-up.

Affirmative Action Might Be Dead but Supreme Court Justice Elena Kagan Put Up a Good Fight

The Supreme Court heard arguments today in Students for Fair Admissions, Inc. v. University of North Carolina, one of two cases set to dismantle affirmative action in U.S. universities. SFA v. UNC takes on the issue in regard to public schools, while the upcoming SFA v. Harvard will address private universities. Given the extreme conservative makeup of the court, both are likely to be disastrous.

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The liberal justices tore into the anti-affirmative action attorney today—Patrick Strawbridge, who, by the way, happens to be one of Donald Trump’s lawyers, just so we all know who we’re dealing with here—but it was Justice Elena Kagan who really fired up the internet with her questions.

Strawbridge’s job today was to argue that the world would be better if universities not just didn’t choose to but were actively barred from thinking about the race of prospective students. It’s a nonsensical, ludicrously reductive argument and Kagan called it out as such repeatedly.

At one point, Kagan noted that universities are designed to be “the pipelines to leadership in our society,” and if the student bodies at universities don’t represent the diversity of the country, then the country’s leadership won’t, either.

“I thought that part of what it meant to be an American and to believe in American pluralism is that actually our institutions are reflective of who we are as a people in all our variety,” she said.

After much hemming and hawing and back-and-forth, Strawbridge could not actually commit to agreeing with that pretty basic point.


Kagan also addressed Strawbridge’s assertions that affirmative action is “putting a thumb on the scale for students of particular races” (rather than, you know, attempting to lift the thumb placed there in favor of white students for generations). Kagan presented a hypothetical scenario where such a thumb exists, but not for race.

“There’s a lot of statistical evidence that suggests that colleges now, when they apply gender-neutral criteria, get many more women than men,” she said. So what if, she posits, a university uses “gender-neutral criteria” in its admissions process and ends up with an incoming class that is 70% women and 30% male students. And what if the university decided, “that’s neither healthy for our university life, nor is it healthy for society, that men are so undereducated as compared to women.”

“Could a university put a thumb on the scales and say, you know, it’s important that we
ensure that men continue to receive college educations at not perfect equality, but, like, roughly in the same ballpark?” Kagan asked.

Strawbridge replied that because gender disparities are “subject to a somewhat lesser level of
scrutiny than racial classifications are,” even if those measures were taken to ensure gender parity, “I don’t think it follows that they can justify racial classifications.”

Kagan said Strawbridge was right about the levels of scrutiny but noted that it’s “peculiar” that “white men get the thumb on the scale, but people who have been kicked in the teeth by our society for centuries do not?”

Strawbridge responded with a classic #NotAllMen. From the official court transcript:

MR. STRAWBRIDGE: Well, of course, our position is that white men could not get a thumb on the scale. That sounds like a racial classification. Men could perhaps.


MR. STRAWBRIDGE: But not white men.


“Oh, uh-huh” indeed!

I wish any of this would matter in terms of getting a fair outcome for this or literally any case in the current court but at least we have smart people putting up a good fight.

(image: Brendan Smialowski/Getty Images)

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Vivian Kane
Vivian Kane (she/her) is the Senior News Editor at The Mary Sue, where she's been writing about politics and entertainment (and all the ways in which the two overlap) since the dark days of late 2016. Born in San Francisco and radicalized in Los Angeles, she now lives in Kansas City, Missouri, where she gets to put her MFA to use covering the local theatre scene. She is the co-owner of The Pitch, Kansas City’s alt news and culture magazine, alongside her husband, Brock Wilbur, with whom she also shares many cats.