Amy Coney Barrett has Harvard and Yale worried. Not because her law degree breaks their lock on Supreme Court justices. But because these Ivy League schools’ use of race in their college admissions is now before the federal courts—and they fear Judge Barrett will be the decisive vote against them if she’s confirmed to the Supreme Court.
No doubt Democrats on the Senate Judiciary Committee will ask about affirmative action this week as Judge Barrett goes through her hearings. As the senators’ opening statements Monday indicated, however, for now they are concentrating their fire on the threat she’s said to pose to abortion rights and ObamaCare.
But as Judge Barrett herself has pointed out, though the Supreme Court may give states more latitude to regulate or restrict the procedure, the “core holding” of Roe—a woman’s right to an abortion—is unlikely to change. As for ObamaCare, it’s true that a week after the election the Supreme Court will hear a case asking it to strike down the entire Affordable Care Act. But notwithstanding Sen. Kamala Harris’s assertion during Monday’s hearing that the Barrett nomination is part of a Republican plot to strip “135 million Americans with pre-existing conditions” of their ObamaCare protections, it’s far from clear that even the Court’s conservatives buy the legal argument for doing so.
In sharp contrast, race discrimination in college admissions may be one area where progressive fears are justified. Right now Harvard and Yale are each in federal court defending themselves against separate charges that their admissions process unfairly discriminates against whites and Asians in favor of Latinos and African-Americans.
The Harvard case was brought by a group called Students for Fair Admissions. Harvard won the first round, when a district court judge ruled that penalizing qualified Asian-Americans is “justified by the compelling interest in diversity and all the benefits that flow from a diverse college population.” With the First U.S. Circuit Court of Appeals readying to weigh in, the Justice Department last week filed a similar case against Yale. Whichever way these cases turn out, they are destined for the Supreme Court.
Read the full piece from the Wall Street Journal here.