As expected, a panel of the liberal U.S. Court of Appeals for the First Circuit has affirmed a lower court ruling that Harvard’s race-conscious admissions program is lawful. You can read the opinion, all 100 pages of it, here.
Having read the opinion, I don’t recommend it except to those with a particular interest in the issue. For me, the most interesting portion begins at page 90, when the court tries to justify its conclusion that the “personal ratings” of applicants — the portion of the admissions process that causes Asian-American applicants as a class to lose out — are not influenced by race. All I will say about this section for now is that I cannot imagine a court writing such an analysis if Black applicants were losing out based on highly subjective “personal ratings” on the same facts as presented in this case.
The First Circuit was always going to uphold the district court’s ruling in favor of Harvard. The real question has always been what the Supreme Court will do with this case.
Two Justices — Thomas and Alito — seem very likely to disagree with the First Circuit’s ruling. A third — the Chief Justice — has in the past viewed cases like this one similarly to the way Thomas and Alito do. Will the current incarnation of Roberts change his view? I don’t know.
Three Justices have been added to the Court since the last time it visited the matter of race-based admissions policies. All three are right of center, but their view of this particular issue is unclear, at least to me. I can see Justice Kavanaugh, for example, being wobbly on the matter.
In sum, there are six potential votes against Harvard in this case, with five needed for the Asian-American students to prevail. I wouldn’t be surprised to see three sets of opinions, with some sort of middle ground opinion on the broad question of race-based admissions carrying the day. This, of course, is what happened when the Supreme Court first visited the issue in the Bakke case, all those years ago.