The Supreme Court has a new affirmative action case, and liberals could actually win it

The guy behind the Harvard lawsuit attacking affirmative action turns his ire on the service academies.

West Point cadets in hats and caped coats cheer from football stands. One holds a sign that reads “Go Army!”

West Point cadets cheer at a football game between the Army Black Knights and the Navy Midshipmen on December 9, 2023, at Gillette Stadium in Foxboro, Massachusetts. Fred Kfoury III/Icon Sportswire via Getty Images Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

Last June, the Supreme Court handed down a sweeping decision abolishing race-conscious admissions programs at nearly every college and university in the country, with one notable exception: military service academies.

The Court’s decision in Students for Fair Admissions v. Harvard applies to civilian schools, but the Court also said in a footnote that it was not deciding whether academies such as West Point or the Naval Academy may continue to take steps to diversify their student bodies that the decision forbade in other schools. That footnote referred to the “potentially distinct interests that military academies may present,” but didn’t clarify what the six Republican justices who joined the Harvard decision think these “distinct interests” might be.

Now, however, this undecided question is before the Supreme Court in a new shadow docket case known as Students for Fair Admissions v. United States Military Academy West Point (Students for Fair Admissions, the plaintiff in both cases, is led by Edward Blum, a former stockbroker who is now the driving force behind many lawsuits seeking to abolish policies intended to advance racial equity).

The West Point case is distinct from the Harvard case, however, in that it presents a conflict between two competing values that the Court’s current Republican majority genuinely cares about.

On the one hand, the Republican justices are hostile to virtually any policy that takes account of race, regardless of whether that policy exists to advance white supremacy or to eradicate its legacy. The Court’s decision in Harvard compares that school’s former admissions program, which sought to diversify its campus by giving a slight preference to some applicants from underrepresented racial groups, to the Jim Crow school segregation regime struck down in Brown v. Board of Education (1954).

At the same time, the Supreme Court has historically shown a great deal of deference to the military. As the Court said in Gilligan v. Morgan (1973), “[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence” than questions involving “the composition, training, equipping, and control of a military force.”

Moreover, while the Court’s current majority has raced to overturn many precedents that are out of step with the Republican Party’s policy preferences — Harvard, after all, overruled nearly a half-century of decisions permitting universities to take limited account of race in admissions — several of the Court’s Republican appointees appear to believe that Gilligan should remain good law.

The Court’s Republican majority, for example, is normally very sympathetic to cases brought by Christian conservatives. But, in Austin v. U.S. Navy SEALs 1-26 (2022), Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett — all Republicans — voted to block a lower court decision that prevented the military from reassigning service members who refused for religious reasons to get a Covid-19 vaccine.

So there’s a real chance that this Court, despite its recent opinion in Harvard, could decide that the judiciary’s long tradition of deferring to the military on personnel and related matters should continue to hold in the West Point case.

In her brief to the justices, Solicitor General Elizabeth Prelogar warns that “a lack of diversity in leadership can jeopardize the Army’s ability to win wars.” Indeed, she writes that the lack of non-white officers during the Vietnam War led to widespread violence within the military’s ranks.

“Plagued by accusations that white officers were using minority service members as ‘cannon fodder,’” Prelogar tells the justices, “the Army confronted racial violence that ‘extended from fire bases in Vietnam to army posts within the United States to installations in West Germany, Korea, Thailand, and Okinawa.’” To reduce the risk of this happening again, West Point takes some account of race in its admissions to help ensure that non-white enlisted personnel will look at their commanders and see some faces that resemble their own.

West Point cadets are commissioned as army officers upon their graduation.

It’s worth noting that the two sides of the West Point case can’t seem to agree on just how much of a role race plays in West Point’s admissions. The plaintiffs claim that race completely pervades the process, that the military academy sets very precise racial targets for who is admitted, and that “for each of the six years of complete data in the record, West Point never missed its target for blacks or Hispanics by more than 3.6 percentage points.”

The Justice Department’s brief, meanwhile, paints a completely different picture. As it describes the admissions process at West Point, the dominant factor determining admissions is which applicants are nominated by a member of Congress or other high-ranking official to become a cadet, and race is merely a small factor that comes into play later in the process.

The fact that the two parties aren’t sure what they are arguing about is a good reason for the Supreme Court to give this case a miss — at least for now. As Prelogar notes, this lawsuit is “only four months old,” and lower courts have not yet conducted the rigorous fact-finding process that occurs in later stages of the litigation. So, if the justices were to block West Point’s admissions policy now, they couldn’t even be sure what they are blocking.

Prelogar also warns that “West Point is in the middle of an admissions cycle” right now, and some applicants have already been offered seats in the incoming class. So, if the Supreme Court were to intervene now, that could force West Point to “either rescind offers already issued or apply different criteria to candidates based on the happenstance of when their applications were reviewed.”

So it’s also reasonably likely that a majority of the justices will want to put off deciding this case until they know more about how West Point’s system works, or to some time in the future when a Supreme Court decision won’t disrupt an ongoing admissions cycle.

Ultimately, however, it is unlikely that the Court will delay forever. And when the justices do weigh in on the question they put off in the Harvard case, we will learn about whether they care more about their racial agenda or ensuring that military decisions are made by people who actually know something about military readiness.


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