Affirmative Action’s Last Stand | Crooked Media
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November 01, 2022
What A Day
Affirmative Action’s Last Stand

In This Episode

  • The Supreme Court heard arguments Monday over two cases that will decide the fate of affirmative action at American colleges and universities. Jay Willis, the editor-in-chief of Balls & Strikes, tells us what’s at stake if the justices decide to overturn decades of precedent on the issue.
  • And in headlines: federal prosecutors charged the man accused of attacking House Speaker Nancy Pelosi’s husband, Taylor Swift became the first artist ever to claim the top 10 slots on the Billboard Hot 100 charts, and Elon Musk is reportedly planning layoffs at Twitter.


Show Notes:



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Josie Duffy Rice: It’s Tuesday, November 1st. I’m Josie Duffy Rice. 


Tre’vell Anderson: And I’m Tre’vell Anderson. And this is What A Day where we’re no longer welcoming ghosts, ghouls, and goblins into our homes under any circumstances. 


Josie Duffy Rice: Yeah, you guys had your chance. Spooky season is over. And it’s Christmas now. 


Tre’vell Anderson: Yep. Witches prepare for landing because only Santa is allowed to fly now. [music break] On today’s show, the man accused of attacking House Speaker Nancy Pelosi’s husband faces assault and attempted kidnapping charges. Plus, Elon Musk is planning big changes for Twitter. 


Josie Duffy Rice: But first, the US Supreme Court is considering the fate of affirmative action at colleges and universities. 


Tre’vell Anderson: Yes, we’ve been bracing ourselves for this for a while now. But Josie, can you tell us about what went down? 


Josie Duffy Rice: Yes. So the justices heard more than 5 hours of arguments Monday on two separate cases involving Harvard and the University of North Carolina at Chapel Hill, respectively, regarding application processes that take an applicant’s race or ethnicity into consideration. Now, past Supreme Courts have ruled that universities can use race as a factor in offering admission, but with certain limits. 


Tre’vell Anderson: Right. So when was the last time the court even considered a case like this? 


Josie Duffy Rice: The High Court most recently took up the issue just six years ago when it upheld the limited use of race in admissions decisions for the University of Texas. Now, these programs were designed to improve diversity among university student bodies and to correct to some extent the historical inequities that have kept generations of people of color from pursuing higher education. But the conservative justices who currently make up the majority on today’s Supreme Court, have strongly indicated that they want to end these programs and overturn decades of precedent. 


Tre’vell Anderson: And they’re overturning decades of precedent, slowly but surely. 


Josie Duffy Rice: Yup, left and right. So to recap the arguments and to learn more about what’s at stake, I’m joined now by lawyer and writer Jay Willis. Jay is the editor in chief of Balls and Strikes, a website covering the Supreme Court through a progressive lens. And he sat through and survived all 5 hours of Monday’s oral arguments. Jay, welcome to What A Day. 


Jay Willis: Thank you for having me. Happy to be here to talk about the Supreme Court, an organization that only delivers good and fun and upbeat news for us to discuss. 


Josie Duffy Rice: [laughing] Okay. Tell us a little bit about the affirmative action cases we heard, the oral arguments that happened in front of the Supreme Court. 


Jay Willis: Yeah. So the justices heard oral argument in two cases. One is about the admissions processes at the University of North Carolina. So public schools and the other about the processes at Harvard. And so private schools that receive federal funds. And the basic question in these cases is the same whether schools are allowed to consider applicant’s race during the admissions process. But I want to drill down on that a little bit, because there’s this misperception that drives a lot of the opposition or skepticism of affirmative action, and that it’s that affirmative action is based on quotas, that schools pick a certain number of Black students and a certain number of white students and a certain number of Latinx students and do their work like that. And that’s just not true. 


Josie Duffy Rice: Right. 


Jay Willis: Quotas have been illegal for almost 50 years since the 1978 case called Bakke. What happens today is that schools consider race among a bunch of different factors in what’s known as a holistic review process. It’s the common sense stuff, geographic diversity or overcoming your hardship as a child or athletic ability or legacy status, or like playing the oboe when the band needs an oboe player. That’s how race actually works in the admissions process. But this myth continues to drive the dialog around affirmative action, especially on the right. 


Josie Duffy Rice: Tell us a little bit about who’s challenging this case. Like, why is it being brought? Who’s bringing it? 


Jay Willis: Students for Fair Admissions is the organization of this guy, Ed Blum. He’s a Texas stockbroker. He was the driving force behind Shelby County, the 2013 decision that gutted the Voting Rights Act. And now he’s back to uh you know take a hack at a different kind of law that extends marginal benefits to people of color. 


Josie Duffy Rice: Right. 


Jay Willis: But I do want to emphasize and shout out the reporting of Jeannie Park and Kristin Penner at Slate here that Ed Blum is not just like one guy on a one man crusade against voting rights and affirmative action. He receives tens of millions of dollars from corporate interests, right wing think tanks, plus the support of a boutique law firm known primarily for hiring former Clarence Thomas clerks and defending Donald Trump in court. 


Josie Duffy Rice: Right. So what did we see from uh the lawyers actually arguing this in court and what did we hear from the justices during these unusually long arguments? 


Jay Willis: Well, first of all, there was a lot of discussions about what admissions processes will look like if schools are no longer allowed to consider race. 


Josie Duffy Rice: Mm hmm. 


Jay Willis: There’s a lot of questions about like the test going forward for admissions processes that eventually inevitably still get subjected to these kinds of challenges. At one point, uh one of the anti-affirmative action lawyers talked about students getting admitted on, quote, “race and race alone,” end quote, which like simply doesn’t happen again and it’s kind of embarrassing for him to so casually assert it. And thinking about sort of the practical implications of what a post affirmative action world is going to look like. Justice Ketanji Brown Jackson brought this up in a really powerful hypothetical where she pointed out how race neutrality will disadvantage students of color like it will be not neutral and actively harmful to students of color. 


Josie Duffy Rice: Right. 


Jay Willis: So she said, take two applicants who want their family backgrounds considered in the admissions process. One fifth generation North Carolina resident who would be the fifth generation of their family to graduate from UNC. 


Josie Duffy Rice: Right. 


Jay Willis: And how they want to carry on the family tradition. And then she said, what about the fifth generation North Carolina resident who is the descendant of slaves. 


Josie Duffy Rice: Mm hmm. 


Jay Willis: Who would be the first in their family to graduate from the University of North Carolina. There’s a very real possibility that race blindness would give a plus to the first applicant, but not the second one. How some people can talk about their identities, but others are discouraged from doing the same thing. 


Josie Duffy Rice: Mm hmm. 


Jay Willis: That’s not treating people of different races the same. 


Josie Duffy Rice: Right. 


Jay Willis: That’s treating certain people worse. 


Josie Duffy Rice: So again, we kind of talked earlier about how there have been cases about this before. There was, Bakke. There were other cases in the early nineties. This has been discussed and considered by the court repeatedly, I think just a few years ago, Ruth Bader Ginsburg said she didn’t expect for this issue to come up again because the court had considered it so much. Talk to us about why we’re hearing this case again? 


Jay Willis: The court has not been a liberal entity in at least 50 years. 


Josie Duffy Rice: Right. 


Jay Willis: If not longer. But the extent to which it’s lurched to the right, especially over the last five years, can’t really be overstated. What conservative activist lawyers understand is that now is the time to, like, go for it, to bring the cases that they really want. 


Josie Duffy Rice: Right. 


Jay Willis: You saw this last term when as soon as Justice Barrett gets confirmed to the court. Right? Suddenly they’re asking the justices explicitly to overrule Roe. 


Josie Duffy Rice: Right. 


Jay Willis: You’re seeing the same thing here. This is like the conservative legal movement’s next white whale that they’re going for. 


Josie Duffy Rice: Mmm. 


Jay Willis: And while they’ve got the votes, this is the time to ask for it. Affirmative action boils down to like how you view education as a public good or as like a commodity. My view and the Supreme Court’s view over you know the past several decades has treated education as a public good, that it trains professionals and leaders, that there are social benefits to thinking about racial equity. Conservatives view it as a commodity that goes to the highest bidder, which in this context means whoever scored highest on the SAT. The status quo is that schools cling to just like the tiniest bit of discretion in how they choose to put together their classes. And now we’re going to get rid of that under, of all things, the guise of rooting out discrimination against white people. 


Josie Duffy Rice: Right. And I think a point was made during the arguments today. It’s not as if the percentage of Black kids at Harvard or UNC is drastically higher than the national population. Right. It’s not as if there are no white kids at these schools. 8% of students at Harvard are Black. 58% of them are white. You know, we’re not talking about a situation where Black students are taking over, you know, one of the most elite universities in the world. Right. Like I went there, I can tell you, we’re in the far minority, you know, so it just really reiterates like the intense focus on rooting out students of color, period. It is just an obsession with making sure that schools are more white. 


Jay Willis: We brought up Shelby County earlier and there was an interesting point in the oral argument today. In Shelby County, Chief Justice Roberts wrote for the majority, and his argument was basically that parts of the Voting Rights Act could go because it had run its course. Black turnout in elections was higher. More Black candidates were running for and winning elected office. So he said, what do we need a Voting Rights Act for? 


Josie Duffy Rice: Mm hmm. 


Jay Willis: And the solicitor general made a similar point today. Affirmative action as it exists right now in like this very on the margins consideration in the admissions process. Affirmative action is working. It’s not like awesome. 


Josie Duffy Rice: Right. 


Jay Willis: But it’s better than nothing. Getting rid of it on some magical racism is over understanding risks upsetting even the marginal progress towards addressing the legacies of racism and slavery that this country will basically never stop addressing. 


Josie Duffy Rice: You obviously are editor in chief of Balls and Strikes, a website that provides a critical look at the Supreme Court. And one of the things that you focused on is trying to disabuse the public of this notion that the Supreme Court is a purely legal body that looks at law and precedents and makes decisions separate from politics. You know, you’ve been vocal about your belief that the Supreme Court is actually a political institution and is making decisions based on their own political leanings, viewpoints and values. Does this case change your perspective on that at all? Or reinforce it? I mean, how does this reflect your beliefs about the connection between Supreme Court justices and the decisions they make and the political parties that they belong to, even if we want to pretend that they’re apolitical beings? 


Jay Willis: This has been a, a white whale of not just the conservative legal movement, but of like reactionary politics, Republican politics for decades. Right. The same way– 


Josie Duffy Rice: Mm hmm. 


Jay Willis: –Republicans rallied around the anti-choice movement, the opposition to affirmative action is rooted in this sense of grievance that if something wrong, if something bad has happened to you, it’s because a less deserving Black person got what you deserved. Cases like this are coming before this court because conservatives see an opportunity to like vindicate these narratives. That’s why conservatives have invested so much time and energy and money in seizing control of the federal judiciary, because doing so allows them to take controversial policy opinions, unpopular policy opinions, and say, well, you know, we’re just following the law to its inevitable conclusion. 


Josie Duffy Rice: Right. Thank you so much Jay for joining us. 


Jay Willis: Yeah, thank you again for having me. 


Josie Duffy Rice: That was my conversation with Jay Willis, the editor in chief of the website Balls and Strikes. The Supreme Court is expected to hand down its decision on these cases sometime during the summer, and we’ll be sure to keep you updated. But in the meantime, that’s the latest for now. We will be back after some ads. 




Josie Duffy Rice: Let’s get to some headlines. 


[sung] Headlines. 


Josie Duffy Rice: Federal prosecutors charged the man accused of attacking House Speaker Nancy Pelosi’s husband, Paul, with attempted kidnapping and assault yesterday. According to the complaint, David DePape told police he planned to interrogate Nancy Pelosi, who is in Washington, D.C. at the time when he broke into her San Francisco home on Friday and, quote, “break her kneecaps.” DePape is expected to be arraigned today and could spend up to 50 years in prison for the attack. 


Tre’vell Anderson: The former Michigan police officer who shot and killed Patrick Lyoya in April will stand trial for second degree murder. Christopher Schurr, who is white, is accused of shooting Lyoya, who was Black after Lyoya ran away from a traffic stop. Video footage of Lyoya’s last minutes alive show him wrestling with Schurr before he was pinned down and shot in the back of the head. Schurr was fired from the Grand Rapids Police Department back in June. He has pleaded not guilty. 


Josie Duffy Rice: Former President Donald Trump once again asked the Supreme Court to get involved in his legal drama. Yesterday, he asked the court to temporarily block the House Ways and Means Committee from obtaining his tax returns. This is part of a years long fight to block their release and comes after an appeals court judge ruled last week that Trump has to disclose them to lawmakers in the coming days. And speaking of Trump and his taxes, yesterday, the New York criminal tax fraud trial against the Trump Organization began. This case focuses on whether the family owned business helped his executives cheat on their taxes by compensating them with expensive off the books perks like luxury cars and apartments. The former president, along with his three adult children, could be called to testify in this trial in another courtroom family reunion for the Trumps. 


Tre’vell Anderson: Try as we might, and I surely do try hard. We can’t ignore the vice grip Taylor Swift has on pop music. She just became the first artist ever to claim the top ten slots on the Billboard Hot 100 charts in the U.S. following the release of her album Midnights. The previous record holder was Drake with nine of the top ten songs last September. Now we know Swifties pore over everything she does looking for secret clues about her life. So in light of her taking the top ten, let’s look at the significance of the number ten here. Ten spelled backwards is net. The net is where most people listen to music. Music can be created by singing. And Taylor Swift is herself an extremely popular singer. So consider this mystery solved. 


Josie Duffy Rice: Wow. You’re like Nancy Drew. 


Tre’vell Anderson: [laugh] The best. 


Josie Duffy Rice: I’m so impressed. The best. And Elon Musk has already gone from kicking the tires on his new toy Twitter to removing the tires, to burning the tires, to ripping apart and swallowing large portions of the engine. Since buying the site late last week for $44 billion dollars, Musk has fired three of its top executives and dissolved the board, making him Twitter’s sole director. According to The Washington Post, he worked through the weekend with several longtime associates and Twitter’s remaining senior executives to plan layoffs. Reportedly, 25% of the company’s staff will lose their jobs. As for what else is on the horizon, some outlets are reporting Musk has begun efforts to revive the short form video app Vine, and there are also reports that he’ll begin charging $20 a month to verified users who want to keep their blue checkmark, which is actually only a fraction of how much he should be paying us to stay on this website. 


Tre’vell Anderson: I like the idea of bringing back Vine. 


Josie Duffy Rice: Yes. 


Tre’vell Anderson: That was a great moment in–


Josie Duffy Rice: Yes. 


Tre’vell Anderson: –Culture and time. 


Josie Duffy Rice: That is a tiny bright spot. 


Tre’vell Anderson: But this twenty dollars? 


Josie Duffy Rice: Yeah. 


Tre’vell Anderson: This $20 for a blue check is absurd. Come on now. 


Josie Duffy Rice: It’s absurd. Honestly, look, if any of us are willing to spend even a moment of our short lives in the cesspool that is Twitter, we should be paid accordingly. We should not be paying. 


Tre’vell Anderson: Absolutely. And on some days, we like to close out our headline section by talking about who paid for famous actors hospital bills. We’ve never actually done this before, but this feels like a good time to start. Interview footage recently resurfaced on social media, showing that Dr. Martin Luther King Junior and Coretta Scott King picked up the tab when Julia Roberts was born in 1967. Apparently, the two families became friends after the King children started attending a theater school in Atlanta owned by Walter and Betty Roberts, the parents of Julia Roberts. In response to the recirculation of this story, Bernice King, who is the youngest child of the civil rights leaders, tweeted, quote, “I know the story well, but it is moving for me to be reminded of my parents generosity and influence.” 


Josie Duffy Rice: I honestly, this story is like incredible civil rights mad lib like [laughter] who knew? Julia Roberts, birth, Dr. Martin Luther King. I mean, it’s just great. 


Tre’vell Anderson: It’s really bonkers. But also a reminder that, like, you know, the civil rights movement wasn’t that long ago. 


Josie Duffy Rice: Right. Because Julia Roberts is not that old. 


Tre’vell Anderson: Absolutely. 


Josie Duffy Rice: Yeah. So every time you see those black and white pictures and you start convincing yourself it was 200 years ago. 


Tre’vell Anderson: Mm hmm. 


Josie Duffy Rice: And those are the headlines. [music break] That is all for today. If you like the show, make sure you subscribe. Leave a review. Kick a tire and tell your friends to listen. 


Tre’vell Anderson: And if you are into reading and not just the lyrics of Taylor Swift’s songs looking for clues like me, What A Day is also a nightly newsletter. Check it out and subscribe at I’m Tre’vell Anderson. 


Josie Duffy Rice: I’m Josie Duffy Rice. 


[spoken together] And pay us to use Twitter. 


Tre’vell Anderson: Listen, we’re the lifeblood of that site, okay? 


Josie Duffy Rice: Yeah. 


Tre’vell Anderson: And we deserve an extra check. 


Josie Duffy Rice: How else do you expect me to find out who makes the warmest coat? [laughter] If I’m not getting paid money to ask these questions to people I don’t know on the internet. [music break]


Tre’vell Anderson: What A Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Jazzi Marine and Raven Yamamoto are our associate producers. Our head writer is Jon Millstein and our executive producer is Lita Martinez. Our theme music is by Colin Gilliard and Kashaka.