Supreme Court Justice Antonin ScaliaAP Photo/Rogelio V. Solis

This article is from the archive of our partner National Journal

The Supreme Court’s conservative justices took a hard line Wednesday against affirmative action, suggesting that universities will have a difficult time justifying the use of race even as a minor factor in their admissions decisions.

In oral arguments over the admissions policies at the University of Texas, the Court’s conservatives questioned whether the school’s affirmative-action program works and, even if it does, whether it meets the high bar the Court applies to programs that assign a race-based preference.

“I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many black students as possible,” Justice Antonin Scalia said.

As the university’s attorney extolled the virtues of fostering diversity at the state’s flagship campus, Scalia suggested not only that the state was going about it incorrectly, but that the goal itself might be misplaced.

“Most of the black scientists in the country don’t come from schools like the University of Texas. They come from lesser schools,” Scalia said.

The Court’s conservatives were clearly angling for a ruling that Texas had not met its burden for justifying the use of race in college admissions. But Justice Anthony Kennedy—who almost certainly holds the deciding vote in the case—seemed at least open to giving the school another chance.

Kennedy was at times skeptical of Texas’s arguments on Wednesday, particularly as his fellow Republican appointees pressed the school’s attorney for more evidence that affirmative action was necessary. But Kennedy floated the idea of sending the case back to a trial court, which would give the university a chance to add new evidence to the record.

It would be the second time the Supreme Court has punted in this case. It first heard the case in 2013, and decided to send it back to a federal appeals court for a new hearing. And Kennedy seemed frustrated Wednesday that the evidence was largely the same this time around.

“We’re just arguing the same case,” Kennedy said.

A new trial might be the university’s best hope. Its attorney, Gregory Garre, met aggressive questioning Wednesday from conservative justices who said the school has not adequately justified the use of a racial preference in admissions.

The Court has previously said that state universities have a legitimate interest in promoting diversity, but they must prove that their affirmative-action programs are “narrowly tailored” to advance that interest. In 2003, the Court upheld the use of affirmative action partly as a way to correct for past discrimination, suggesting that it wouldn’t be necessary in another 25 years.

Since Chief Justice John Roberts joined the Court in 2005, that clock has been ticking especially loudly. And Roberts was clearly anxious on Wednesday to put an end to racial preference in college admissions.

“Are we going to hit the deadline? Is this going to be done in 12 years?” Roberts asked.

This article is from the archive of our partner National Journal.

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