June 29, 2023 Supreme Court affirmative action decision

President Joe Biden said the Supreme Court has reserved precedent in its decision to gut affirmative action in college admissions.

The court has "once again walked away from decades of precedent," Biden said in remarks at the White House.

Biden said he "strongly" disagrees with the court's decision and its impacts.

"This is not a normal court," Biden said after his remarks when asked by CNN's Arlette Saenz whether he believed it was a "rogue" court.

CNN's Sam Fossum contributed reporting to this post.

President Joe Biden is speaking now from the White House's Roosevelt Room.

His comments come just hours after the Supreme Court ruled in a landmark decision that colleges and universities can no longer take race into consideration as a specific basis in admissions.

Members of the Biden administration have been discussing contingency plans involving executive action in the event the Supreme Court ended affirmative action, a person familiar with the plans said. Biden convened a meeting today with senior staff who have been closely working on the issue after being briefed about the decision, a White House official said.

Earlier today, an administration official said the White House and the Department of Education were reviewing the affirmative action decision. Biden last spoke about the pending case in November, when he said he urged the Justice Department to “defend the present policy before the Supreme Court” and voiced muted optimism that the Supreme Court would rule in a different way than today’s decision. 

CNN's Arlette Saenz and Kevin Liptak contributed reporting to this post.

Members of the Biden administration had already been discussing contingency plans involving executive action in the event the Supreme Court ended affirmative action, a person familiar with the plans said.

President Joe Biden was briefed by White House Counsel on Thursday after he saw the breaking news reports that the court had gutted the policy, a White House official said. He then convened a meeting with senior staff who have been closely working on the issue.

It's not immediately clear what steps are currently under discussion, and officials have been clear that no step Biden could take would reverse the court's ruling. 

Still, officials inside the administration have been exploring what options exist, including through the Department of Education and by executive action.

Biden last spoke at length about affirmative action at a news conference last November, holding out hope the Supreme Court would uphold it. He is scheduled to deliver remarks from the White House's Roosevelt Room any minute.

The White House has previously declined to say what steps Biden might take should affirmative action be struck down.

"The President supports making higher education accessible to all Americans," press secretary Karine Jean-Pierre said earlier this year. "As the Department of Justice argued in court, it is important that our colleagues and universities produce graduates who are from all segments of society, who are prepared to succeed and lead an increasingly diverse nation."

Harvard University and the University of North Carolina Chapel Hill, the universities at the heart of the Supreme Court's ruling that were challenged by students, responded to Thursday's decision by vowing to figure out a way forward.

Harvard: "We write today to reaffirm the fundamental principle that deep and transformative teaching, learning, and research depend upon a community comprising people of many backgrounds, perspectives, and lived experiences. That principle is as true and important today as it was yesterday. So too are the abiding values that have enabled us—and every great educational institution—to pursue the high calling of educating creative thinkers and bold leaders, of deepening human knowledge, and of promoting progress, justice, and human flourishing."

The Ivy League school said that for almost a decade it had "vigorously defended an admissions system that, as two federal courts ruled, fully complied with longstanding precedent." In the coming weeks and months, Harvard said it would work to "determine how to preserve, consistent with the Court’s new precedent, our essential values."

UNC: “On behalf of the people of our state, we will work with the administration to ensure that the University of North Carolina at Chapel Hill complies fully with today's ruling from the nation’s highest court. We intend for America's oldest public university to keep leading," said David L. Boliek Jr., the chair of UNC-Chapel Hill's Board of Trustees speaking on behalf of the board.

An advocate against affirmative action, who is on the board of for Students for Fair Admissions, the group that brought the lawsuit against Harvard and University of North Carolina, says that colleges and universities should eliminate legacy admissions if they want true diversity.

"If you are an Asian American, you have to score 273 points higher on the SAT to have the same chance of admission as a Black person at Harvard. Is that fair? I understand that people's lives are improved by getting into an Ivy League university, but that opportunity should be made available to people of every race, not just one," he added.

Claiming that a large percentage of Harvard University's Black students are immigrants and come from an upper middle class or higher economic background, he said, "at that point, a Black American admitted to Harvard is more likely to have [more in common] with the standard White upper class applicant than they are to have with a truly poor and disadvantaged person."

More on today's ruling: The Supreme Court conservative majority opinion claims that the court was not expressly overturning prior cases authorizing race-based affirmative action and suggested that how race has affected an applicant’s life can still be part of how their application is considered.

But even if the court did not formally end race-based affirmative action in higher education, its analysis will make it practically impossible for colleges and universities to take race into account – as the three Democratic appointees stressed in dissent.

Republican presidential candidates were quick to praise the Supreme Court's affirmative action ruling. Here's a look at some of their reactions:

Former President Donald Trump: "This is a great day for America. People with extraordinary ability and everything else necessary for success, including future greatness for our country, are finally being rewarded. This is the ruling everyone was waiting and hoping for and the result was amazing. It will also keep us competitive with the rest of the world. Our greatest minds must be cherished and that’s what this wonderful day has brought. We’re going back to all merit-based—and that’s the way it should be!"

Florida Gov. Ron DeSantis: "College admissions should be based on merit and applicants should not be judged on their race or ethnicity. The Supreme Court has correctly upheld the Constitution and ended discrimination by colleges and universities."

Nikki Haley: "The world admires America because we value freedom & opportunity. SCOTUS re-affirmed those values today. Picking winners & losers based on race is fundamentally wrong. This decision will help every student—no matter their background—have a better opportunity to achieve the American dream," she said in a statement.

Former Vice President Mike Pence: "There is no place for discrimination based on race in the United States, and I am pleased that the Supreme Court has put an end to this egregious violation of civil and constitutional rights in admissions processes, which only served to perpetuate racism. I am honored to have played a role in appointing three of the Justices that ensured today’s welcomed decision, and as President I will continue to appoint judges who will strictly apply the law rather than twisting it to serve woke and progressive ends," he said in a statement.

Vivek Ramaswamy: "I’m glad the U.S. Supreme Court finally laid to rest one of the worst failed experiments in American history: affirmative action," he said in a statement.

Larry Elder: "I oppose race based admissions to colleges and universities. When California banned the use of race based college admissions, graduation rates for black students actually went up because they went to universities that matched their skill levels. Affirmative action also discriminates against Asian Americans who have the temerity to work hard, make good grades and perform well on standardized tests, only to find themselves penalized when it comes to admission into the college or university of their choice," he said in a statement.

Perry Johnson: "I applaud today’s #SCOTUS ruling on affirmative action. Discrimination based on the color of one’s skin is wrong, period. Leftists in America continue to drive wedges amongst us with inflammatory rhetoric and practices in dealing with race. It is time we stand up against it."

Sen. Tim Scott: “This is a good day for America. Honestly, this is the day where we understand that being judged by the content of our character, not the color of our skin is what our constitution wants. We are continuing to work on forming this more perfect union. Today is better than yesterday. This year better than last year. This decade better than last decade. The progress that we're seeing in this nation is palpable. That's good news for every single corridor of this nation, and one that we should celebrate,” Scott told Fox News.

Former Arkansas Gov. Asa Hutchinson: said the Supreme Court's decision “reinforces the fundamental American principle of equality for all.” He added that “it ends with finality the system of racial preferences and box-checking that unfairly categorized students based on their race, rather than their individual merits."

CNN's Kit Maher and Veronica Stracqualarsi contributed to this report.

A footnote in Justice Ketanji Brown Jackson’s affirmative action dissent notes that her commentary is aimed at the issues raised by the challenge to University of North Carolina’s admission program — and not to the Harvard affirmative action case that was also before the court.

Jackson had recused herself from the challenge to Harvard’s use of race in admissions. She is one of four justices who graduated from Harvard, having attended both its undergraduate and law schools. But for years, she has sat on the university’s board of overseers. She announced during her Senate confirmation proceedings last year that she would not participate in the case against Harvard.

It was unclear in the lead-up to Thursday’s ruling whether the Supreme Court would issue separate opinions in the North Carolina and Harvard case. There was much overlap in the two lawsuits, but also some distinctions.

The Supreme Court ultimately combined its rulings into one majority opinion. Jackson’s dissent, however focused on the specifics of UNC’s admissions program.

In her dissent, she accused the conservative majority of having a “let-them-eat-cake obliviousness” in how the court's affirmative action ruling announced "'colorblindness for all' by legal fiat."

The Supreme Court said US military service academies can continue to take race into consideration as a factor in admissions, despite a ruling effectively ending affirmative action in admissions to colleges and universities.  

In a footnote in the majority opinion, Chief Justice John Roberts said the cases before the court did “not address the issue” and left open the possibility that there are “potentially distinct interests that military academies may present” in a future case. 

During oral arguments, Solicitor General Elizabeth Prelogar stressed the unique interests of the military and argued that race-based admissions programs further the nation’s compelling interest of diversity.

Justice Ketanji Brown Jackson called out the caveat in her dissent. 

Analysis: Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law, said the majority's refusal to address military academies is a "strange punt in an opinion that otherwise goes a long way toward closing the door on all considerations of race in higher education."

“As Justice Jackson’s dissent makes clear, this creates an awkward — and undefended — distinction between why it might be permissible for the federal government to consider race in military admissions, but not for state governments to do so in their civilian universities,” he added.

CNN's Joan Biskupic had a firsthand view of the reading of the Supreme Court's decision on affirmative action Thursday.

Chief Justice John Roberts didn't waste any time in announcing the decision to gut affirmation action in college admissions, Biskupic said.

"You could have heard a pin drop, and he announces right off of the bat that they are rolling back all affirmative action. And I have to say, there was a little bit of defiance in his voice, even though ... this is something that John Roberts has been working on for himself many, many years, back to his time as a young Ronald Reagan administration lawyer. He does not believe in any kind of race conscious remedies," she said.

He also "kind of warned that he did not want universities and colleges to set up programs that might work in the shadows that might somehow take into consideration applicants' racial backgrounds. It was one of his most robust, strongest statements ever," Biskupic reported.

Justice Sonia Sotomayor, the first Latina justice on the court, "talked about the profound mistake that the majority was making here. She said it would close the doors of opportunity to people across the nation — for schools, for business, for the military; it would have such reverberations," according to Biskupic.

"At the very end, she said, 'We shall overcome.' And it was a mournful robust dissent," Biskupic said. "... The weight of history was so evident in the room."

Justice Kentanji Brown Jackson sat "stone-faced," according to Biskupic.

"Even though they were all trying to hold it in check, you could tell by the tension nonetheless on Justice Jackson's face as she looked out," she said.

The justices spoke for such a long time that they had to take breaks to drink water, Biskupic said.