New York Review of Books
In “When Diversity Matters,” from the Review’s January 19 issue, Sherrilyn Ifill analyzes the affirmative action cases before the Supreme Court this term—Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard College—and the distinct place of oral arguments, as opposed to written briefs, in jurisprudence. “The oral arguments,” she writes, “highlighted the lengths to which this Court must go in order to determine that the policies of Harvard and UNC are discriminatory.”
Ifill graduated from Vassar College and New York University School of Law. Last year her decade-long tenure as president of the NAACP Legal Defense Fund, a position first held by Thurgood Marshall, came to an end. In June, after the Dobbs draft decision was leaked, Ifill wrote for the Review that “we cannot unsee what it has revealed about the current majority’s ambitious project of retrenchment.” I asked her about that project, which continues apace, over email this week.
Sam Needleman: Before the Legal Defense Fund, you taught civil procedure and constitutional law at the University of Maryland for twenty years. This may be a false division, but how do you understand the relationship between your work as a lawyer, your scholarship, and your public writing on the law in publications like the Review?
Sherrilyn Ifill: It’s a bit of a false division only because I was litigating civil rights cases with students even as I was teaching those core courses, and writing regular columns in newspapers and on blogs about race and the law. But it’s always fair to explore the relationship between the work of litigation, scholarship, and being a public intellectual. For me, they are all of a piece. I am endlessly curious about the law, about our history of race and law in this country, and what undergirds our contemporary conception of “justice.”
I also learned early on as a litigator that what you can say in the courtroom is limited, and I’ve always had a lot more to say about race and inequality than the four corners of any case would allow. Most of all, I am always talking to multiple audiences, trying to pull as many people as possible into the critical conversations we need to be having about racism, equal justice, and our democracy—judges, my professional colleagues, students, public officials, and the people in the communities I represent.
You open “When Diversity Matters” with the claim that Justice Ketanji Brown Jackson’s presence during oral arguments shifted the “tenor and intensity” of the UNC case. How did she do so in a way that would have been impossible in a written argument?
I was only a little girl when I first heard Representative Barbara Jordan speak about “THE CONSTITUTION” on my television during the Nixon impeachment hearings. She made me understand the power and potential of a Black woman’s voice. Justice Jackson is the first Black woman to sit on the Supreme Court. We have never heard a Black woman explore issues of race and diversity from that bench. It has been delightful to hear how authoritatively she speaks right out of the gate, and how thoughtful she is in her questioning. She is showing precisely what diversity can bring to that Court. Her mastery of the record in each case, her deep engagement with the history—and especially with the context and significance of the post–Civil War amendments and civil rights statutes designed to ensure and protect Black citizenship—is impressive. All of that, coupled with the particular lens that fires her legal imagination (most powerfully on display in the hypotheticals she presents), is an obviously improving contribution to the Court’s oral arguments.
You argue that since 2020, when the conservative majority on the Court grew to six members with the appointment of Justice Amy Coney Barrett, stare decisis,“the oft-cited rule of precedent,” hasn’t quite been in vogue. Even though affirmative action “is supported by a forty-four-year-old precedent that was reaffirmed only six years ago,” Harvard’s and UNC’s policies may be reversed. How did stare decisis come under great threat? Does that story start in 2020, or before?
In his final dissent before stepping down, Justice Thurgood Marshall wrote that “power, not reason, is the new currency of this Court’s decisionmaking.” He was referring to the majority decision by the Rehnquist Court to strike down a precedent relating to the kind of testimony that can be heard at sentencing in death penalty cases. It is well known that as he left the Court, Marshall was frustrated with its dismantling of precedents in civil rights and criminal defense cases.
So, no, it’s not new. But it has accelerated at a pace and with an abruptness that actually guts the integrity of the doctrine of stare decisis. The Court itself had set forth a pretty challenging choreography for overturning longstanding precedent. But now the Court can simply decide that a decision was “wrong when it was decided” or that it is inconsistent with an entirely new test—made out of whole cloth—that would freeze our individual rights in the amber of centuries-old history.
If the Court decides this spring to “tarnish stare decisis” in their rulings on these cases, you write, “we will know that they are doing so fully aware of the catastrophic implications of their course.” What are some of those catastrophic implications?
Ending race-conscious admissions in colleges, universities, and military service academies will work a drastic change on this country. We have come to take for granted the progress we have made—albeit still insufficient—in providing access and opportunity and in promoting a more diverse society. Perhaps we will understand that progress only when the pendulum swings the other way. The divisions in this country run deep and everything we do at this moment to turn away from policies and practices that bring us together tips us further toward fracture.
But even beyond this term’s cases, the Court’s approach to stare decisis has huge implications for our profession. We litigate within the confines of existing law, and we have traditionally been held to standards that govern our ability to seek changes to existing law through the litigation process. But if those who are ideologically aligned with the conservative majority can simply take their chances—disregarding precedent and standing, and running roughshod over the factual findings of trial courts—secure in the knowledge that the Supreme Court will rule in their favor…well, what then is law? I loved and taught civil procedure, because I always believed that despite unfairness in the system and in American life, litigation allows us to at least play by the same rules. If the rules don’t matter, it’s deeply corrosive to our system of justice.
Your piece includes a thorough historical overview of affirmative action cases since Regents of the University of California v. Bakke (1978). How does a legal scholar writing for a broad audience determine the best way to tell a story like this?
Well, it’s important to give the reader enough information and context without boring them to tears. It’s hard, because I do love all the details that many readers will find uninteresting. But I also think that we are in an age of disinformation, and so I’m quite serious about providing context and sources so that readers can feel confident that my arguments are well supported. The history is also often critical to understanding what has been left out of stories in newspapers or on cable news shows. Civil rights legal issues have deep roots, and much of that longer history has been insufficiently or inaccurately told. I like to think of myself as a trusted guide.
More to read at nyboks.com
During October’s marathon argument in a pair of affirmative action cases, the most racially diverse Supreme Court in US history debated the value of diversity.