Nonetheless, Gorsuch persisted. “We have many briefs on this point from Asian American applicants who say there’s an entire industry to help them appear less Asian on their college applications and that they consider elite colleges to have Asian quotas effectively, if not in name,” the justice noted. Waxman pointed to friend of the court briefs from Asian American students and groups in favor of Harvard’s admissions system, as well as to the lower court’s ruling. “The plaintiffs in this case could not, after four years of discovery in which they handpicked applications to view in total, they could not produce a single witness to testify that he or she had been discriminated against,” he added.
Even as they contemplated affirmative action’s demise, the justices tried to sound out the shape of what would come next. A categorical rule against considering race in college admissions, for example, could pose problems for universities if students volunteer their race or ethnicity in essays or other portions of the application process. Chief Justice John Roberts, who famously wrote that the “best way to stop discriminating on the basis of race is to stop discriminating on the basis of race” in a Seattle desegregation case in 2006, asked whether students could cite their racial background in essays discussing where they overcame discrimination. SFFA’s lawyer said he had no issue with that.
Barrett raised concerns about that option, however. “I mean, I guess what I’m concerned about is if it puts a lot of pressure on the essay writing and the holistic review process,” she remarked during the UNC oral arguments. “You could have viewpoint discrimination issues, I would think, depending on how admissions officers treat essays.” The court’s second newest justice, though apparently skeptical of the Bakke/Grutter status quo in general, also recognized that the universities had one major point on their side: The Fourteenth Amendment, as originally understood by its Framers, “established in our precedent that it’s not always illegal to take race-conscious measures.”