Defenders of affirmative action are emphasizing “text and history” rather than precedent as they face longer odds to win over a majority on a 6-3 conservative-led Supreme Court.

Six years ago, in Fisher v. UT Austin, the justices reaffirmed 40 years of precedent to say schools can consider race in admissions. But after the conservative bloc in June overturned the court’s nearly 50-year-old abortion right, invoking precedent isn’t likely to be persuasive in a pair of affirmative action cases being argued Oct. 31.

“It would be bad lawyering at this point not to be very conscious of who you are writing to specifically as you are crafting these arguments,” said Foley Hoag’s Madeleine Rodriguez, who filed friend-of-the-court briefs in both Fisher and the current cases against the University of North Carolina and Harvard.

The stakes are high and expectations for success are low for advocates who believe affirmative action is still needed to help compose diverse student bodies vital to the US economy. They must find a way to win over conservative justices like Brett Kavanaugh and John Roberts, who make up the court’s new center.

To do so, advocates are grappling with “text and history,” which the conservative majority leaned on last term in overturning the right to an abortion established in Roe v. Wade, expanding gun rights outside of the home, and providing additional protections for religious beliefs. Critical in each case was what the majority thought the text of the law would have meant to those who passed it.

In the affirmative action cases, that means looking at what those who enacted the Civil War-era 14th Amendment thought they were doing—something affirmative action supporters view as a particularly strong basis for race-conscious admissions programs.

“We do want to make sure that the court understands the real history behind the 14th Amendment,” said David Hinojosa, director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law, who will defend UNC’s admission policies at the oral argument.

All or Nothing

Advocates say there’s no question the briefing in support of affirmative action looks different from those filed in the Fisher case, which was decided when Anthony Kennedy was considered the swing justice on many contentious social issues.

ReNika Moore, the director of the ACLU’s Racial Justice Program, said ACLU briefs in Fisher invoked precedent as a way to target Kennedy. And it worked. Kennedy wrote the opinion narrowly upholding the use of race by the University of Texas as a factor to creating a diverse student body.

“As this Court’s cases have made clear,” Kennedy wrote, “a university may institute a race-conscious admissions program as a means of obtaining ‘the educational benefits that flow from student body diversity,’” he said, quoting those earlier precedents.

This time, defenders of affirmative action face a very different court controlled by a “conservative supermajority” that is “shooting for the moon” and less concerned about upholding precedent, said David Gans, director of the progressive Constitutional Accountability Center’s Human Rights, Civil Rights, and Citizenship Program.

Unlike in Fisher, where the ask was to distinguish what UT was doing from the court’s prior cases, the petitioners are asking for the court to completely change course and say the use of race is wholly prohibited by the 14th Amendment, Hinojosa said.

They are “swing for the fences and trying knock out affirmative action all together,” he said.

‘Text and History’

Conservative justices made clear last term just how important history and tradition can be in deciding the outcome.

Reliance “on history to inform the meaning of constitutional text,” the majority said in New York State Rifle & Pistol Association v. Bruen is “more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments.’”

Gans said it is increasingly important to “look at the whole Constitution’s purpose and show how it produces progressive outcomes.”

To do so, those defending affirmative action are focusing on what the 14th Amendment was intended to do—and what it wasn’t—in a way that Gans said hasn’t really been done as robustly before.

“The unambiguous history is that the original version of the 14th Amendment prohibited the consideration of race for any purpose,” said WilmerHale’s William Lee, who represents Harvard in the case. “It mandated constitutionally that we all be race-blind.”

But that race-blind version was rejected in favor of one emphasizing equal protection because “Congress and the states wanted to have the ability to enact legislation and regulations to benefit the freed slaves,” Lee said.

In its brief, Harvard argues the Supreme Court’s affirmative action decisions “fully align with the Framers’ understanding of the Fourteenth Amendment” and that the generation of legislators who adopted it “also embraced measures that took race into account.”

The court’s newest justice, Ketanji Brown Jackson, hinted at this line of thinking during her first week of arguments in a voting rights case involving Alabama’s redistricting, Merrill v. Milligan.
.
“The entire point of the amendment was to secure rights of the freed former slaves,” Jackson said. ” That’s not a race-neutral or race-blind idea.”

Due to her ties to Harvard, Jackson will only participate in the UNC case. Both cases were brought by the Students for Fair Admissions, a group established by conservative activist Ed Blum, who has been behind several of the Supreme Court’s recent cases advocating for a race-blind Constitution.

Writing for History

Others, though, say it’s important not to “normalize” the new court’s appetite for reconsidering longstanding precedent.

“To flout precedent here is particularly destabilizing” given that there’s 40 years of very consistent precedent backing affirmative action programs, said Jin Hee Lee, director of Strategic Initiatives at the Legal Defense Fund. LDF and its sister organization, the NAACP, have long defended affirmative action programs in the high court, including in the current litigation.

Nothing has really changed to call into question the court’s precedent, Moore said—except the composition of the court. “There’s really not a reason for the court to move away from” its earlier cases, she said, so we’re not “yielding that ground.”

It’s important to set the historical record straight, Rodriguez said in her brief, filed on behalf of the Asian American Legal Defense and Education Fund.

“We wanted to draft to draft for victory, but also wanted to draft for history,” she said.