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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. With us now, justice correspondent for The Nation Elie Mystal, to take a closer look at two of the headlines emerging from the Supreme Court this week. You've heard, of course, that Justice Stephen Breyer will retire from the bench later this year. Breyer had previously resisted calls from some Democrats to step down, but now he's doing it. We'll talk a little bit more, as we did yesterday about Breyer's legacy and who Biden might name to replace him.

Elie has identified a very interesting list of potential nominees, so we'll go over some of those names. Remember, Biden yesterday reaffirmed his intention to name the court's first Black woman justice. There's another story related in a certain way, opponents of affirmative action say that colleges and universities are violating the rights of white and Asian American students.

The Supreme Court has now announced it will revisit the question that we might have thought they already settled. This time with suits against Harvard, and the University of North Carolina, tailored for the current conservative majority. We'll talk about both pieces of Supreme Court news with Elie Mystal, justice correspondent for The Nation. He is also the Alfred Knobler Fellow at the Type Media Center. Elie, always great to have you. Welcome back to WNYC.

Elie Mystal: Hi, Brian, how are you? I'm very happy to no longer have to drive a truck around the Supreme Court screaming at Breyer to retire. We can open up my schedule.

Brian Lehrer: Oh, that was you in that truck, was it? Let's talk about the affirmative action case first. What's different about this case? Wasn't this settled? Weren't there multiple cases? Hasn't the Supreme Court long ago told colleges and universities what the guidelines are and where the rails are?

Elie Mystal: Yes, look, affirmative action is settled law, but the people who are against it keep trying and trying and trying, and much like the abortion debate, they haven't changed the law, but they've changed the makeup of the courts, and now they think they can win. The difference between this case and the last case, which was Abigail Fisher v. University of Texas II, not to be confused with Fisher I, is that this time instead of a mediocre performing white girl, they have high performing Asian students who are claiming that affirmative action discriminates against them.

That's the new dodge here. The plaintiffs are called Students for Fair Admissions. They're Asian American students and their parents suing, but behind them is Ed Blum, a noted conservative legal gadfly who's made it his life's work to overturn affirmative action. This is the third affirmative action case that he has marshaled in front of the Supreme Court, and he has a much better chance of winning this time.

Brian Lehrer: Can you describe for our listeners what the law pretty much is right now according to past Supreme Court decisions as to when universities can take race into account as a factor in admissions?

Elie Mystal: Well, it's exactly like you said, the law is pretty simple. You can take race into account as a factor amongst many other factors when looking at college admissions, you can't do quotas. That's illegal. That's unconstitutional. That's wrong. That's bad. I think most people can agree with that, but if you're going to look at the whole application of a student, race is one of the things that you can look at.

Look, I like to put it like this. I went to a super ritzy prep school on Long Island, Friends Academy, for those playing along at home. Real highfalutin Great Gatsby kind of stuff. I was in the top 10 of my class. Pretty much everybody from the top 10 of my class applied to all the Ivys including Harvard. I think actually the top 20 all applied. Only three of us got in. I had the best grades just so people know. [chuckles] I can standardize tests most people into a paper bag. [laughs]

Brian Lehrer: Not that you're bragging or anything, but go ahead.

Elie Mystal: Not that I'm bragging, I'm just saying. Just FYI.

Brian Lehrer: I know, it's context in this case. I'm just kidding.

Elie Mystal: A girl who got in was just a great field hockey star captain of the team. Another boy who got in just a world-class pianist who was choosing between Harvard and Juilliard, like one of those artistic savants. What the anti-affirmative action group is saying is that Harvard could consider everything that I just mentioned, except for the fact that I happen to be Black. Like everything else, they can consider the field hockey, they can consider piano playing, they can consider grades, they can consider a legacy status, they can consider whether or not your parents are donors, but they can't consider just notes that I happen to be African American and that that might increase the diversity of the class in some useful way.

That's the core of their argument. They're going to win it because they've changed the composition of the court. I want to say, Brian, I would be remiss if I didn't say. In this debate, what has gotten overlooked is that the Asian American students have a really good case that Harvard is discriminating against them. They have it both from a numerical standpoint. The representation of Asian American students at Harvard has remained relatively flat over the past 20, 30 years, even though Asian American applications have skyrocketed at the university. That doesn't make sense quite frankly.

Then when you look at some of the soft factors that Harvard uses, things like teacher recommendation letters, which we want people to use amongst highly qualified students, teacher recs should be important. When you look at the teacher recommendations from Asian students, they're generally lower than white students, which is weird. The kinds of things that you read in the teacher recommendations are stereotypically racist. Like, "Jenny's good at math, but she doesn't really have any leadership qualities." What the heck does that mean? "She's captain of the math team." It's a lot of that kind of stuff that has, I think, diminished Asian American representation at places like Harvard.

The problem is is that they've identified the wrong enemy. It's not Black kids that are keeping Asian American kids out of Harvard, it's mediocre whites fail sons. A recent study showed that 40% of the white kids at Harvard were legacy admits, sports scholarships, or their parents donated to the University. 40%. That's the problem. Go deal with the legacies, and leave like the five or six Black kids that Harvard takes out of Mississippi alone.

Brian Lehrer: Is that a defense that Harvard or UNC can use at the Supreme Court?

Elie Mystal: Is it a defense that they can use at the Supreme Court? No, not really. [chuckles] The question is going to be-- Here's the thing. This is something that I feel is a little bit difficult for white people to understand and accept, but the way our constitution works is that to get the protection of something like the equal protection clause or whatever, you have to be a protected class. We look at classes who have been historically disadvantaged in this country, and that includes Black people, that includes Latinos, that maybe includes the LGBTQ community, women are put in this quasi-protected class.

It doesn't include rich white boys. Rich white kids are not a protected class, this has been the problem with previous affirmative action challenges. Asian American kids are a protected class. They deserve equal protection at school and to get into school. If the plaintiffs can show to the satisfaction of people like Clarence Thomas and Neil Gorsuch, that Asian American students are discriminated against, then the court has the power to decide that that's because of affirmative action, even though there's a different enemy, there's an elephant in the room that they are ignoring.

Brian Lehrer: There's a political underlay here, which we can see in the filing, I guess, which is that Asian American students and white students are being put in the same bucket by the plaintiffs here. You're saying Asian American students more belong in the same bucket with Black students and white students in a separate bucket, and whether they can make that case legally or not, I don't know, but that's part of what's happening.

Elie Mystal: One of the big ways that people are discriminated against, and again, people don't see this, the very first sort that an elite college or university does is the geographic sort. If you even look at some of the remedies that they suggest, you can tell that these are white people suggesting the remedies because they're like, "Oh, we should have a program where like every valedictorian from high school gets in." All these place-based advantages as opposed to race-based advantages. That might seem fair until you remember that Black people are not evenly spread out through this country. Asian people are not evenly spread out through this country.

If you are an Asian American student applying out of San Francisco, you're competing in your docket. We literally call it the docket, the regional background. You're competing with some of the very highest-performing Asian American students in the country. If you're a Jewish American student applying out to Long Island, you're competing with many high-performing Jewish kids. If you're a white kid applying out in Nebraska, if you're a white kid applying out in Missouri, if you're a white kid applying out of Arkansas, I can go on and on and on and on about the places in this country where white people generally just have to compete with other white people.

That itself is a method of discrimination that benefits white students. You notice that these plaintiffs are not trying to do anything about that. That's how you can tell that their lawsuit while fronted by Asian American plaintiffs is being controlled by the same old forces of white supremacy because nothing hurts Asian American students as much given the regions of the country that they live in and how insular, how unevenly spread out throughout the country they are. Nothing hurts Asian American students more than the geographic sort, which they aren't even trying to touch.

Brian Lehrer: Listeners, we can take a few phone calls on the latest affirmative action cases before the Supreme Court or on who justice Breyers replacement might be at the United States Supreme Court. For the justice correspondent for The Nation, Elie Mystal, 212-433-WNYC, 212-433-9692, or Twitt your comment or your question @BrianLehrer. Elie, according to previous Supreme Court rulings on affirmative action, is it acceptable for colleges and universities to take diversity of the incoming class into account as a factor in itself,

an inherent good in itself if a college decides that having an adverse freshman class is just good for the whole freshman class, or even good for the world, but at least good for the freshmen class for it to be diverse?

Therefore, they can take race and other demographics into account race, in particular, since that's the hot button one, and all other colleges and universities allowed to take race into account as a way of making up for 400 years of official and unofficial discrimination and the position that that has left Black people in in the United States.

Elie Mystal: Yes. Thurgood Marshall made the argument that affirmative action was redress for slavery and oppression, and for the most part, that argument was rejected. That was the argument white people didn't like. What they did like, and this is not surprising to me, was the diversity argument because the diversity argument helps white kids and we know it does. If you go to college with a rainbow coalition of people, you're going to be much more effective in the boardroom if you have to deal with a rainbow coalition of people. You're going to be much more effective when you're selling things to a rainbow coalition of people.

It helps white kids to learn in a diverse environment. That's why white people liked that argument for affirmative action. Now, because it doesn't help, again, white fail sons get into darkness, now they have an issue with it. The initial argument that it was just a straight-up, y'all did this to Black people, you excluded black people, now you have to pay up. That argument was rejected. I'll tell you something else, Brian, people don't really always get this, but the group that has benefited the most since Bakke, since affirmative action became a policy have been white women.

They are the group that have seen their representation numbers in colleges and universities and especially in elite colleges and universities go up the most. What are we really talking about here, Brian? What we're talking about is what we always end up doing. It's an old dog whistle culture war ginned up by the white right wing and the white wing to try to divide the country and try to basically scare white people and to fill in that somebody is getting something that they ain't getting and they should be angry at the Blacks who are getting it. That's all it is because when you look at any objective merit, what we see is that affirmative action has been simply put the most effective social policy in the history of the country. It is why we have--

[crosstalk]

Brian Lehrer: The white woman piece is really interesting and really interesting from a public opinion standpoint, too. I think this is part of what you were suggesting. In the white population in America, would the response be the same to the question, ''Should colleges reach out to include women toward something like a 50% part of the student body, since women have been discriminated against in higher education for hundreds of years previously?'' Versus the exact same question having to do with Black people?

Elie Mystal: That's it. Now look, there are other ways to skin this cat. [chuckles] I said that I think affirmative action could use a bit of an update because I think that it does not take into account economic factors as much as it should. Quite frankly, like I said, I'm going to test you into the Brown yoh, I don't need affirmative action. I'm good.

I've had the most expensive high school education money can buy. I had access to tutors and test prep and whatever. I was going to be fine. Even if I didn't get into Harvard, Cornell's a good school. I would have been fine. The point of affirmative action should always be to me to help kids who didn't have my opportunities, kids who were just as smart as me who could have been just as successful as me but didn't have my opportunities to go to a great high school or take a test prep course, or just go to the Museum of Natural History once every six months just expand my cultural--

All of these things, a lot of Black kids in my neighborhood didn't have, and it's like affirmative action needed to help them. If you want to argue that affirmative action should be expanded and to include more of an economic-- to make sure that we're admitting people who come from economically disadvantaged backgrounds, as well as historically, racially disadvantaged backgrounds, I'm all for it, but do you know who's going to disagree with me? The same white fail sons who are disagreeing with me now, because the varsity blues people, they ain't helping Felicity Huffman's kid. She's going to be just as pissed about economic affirmative action, as she is about racial affirmative action. It's going to be the same problem.

Brian Lehrer: Let's take a phone call. Julie in New Providence, New Jersey, I think is going to push back to some degree. Julie, you're on WNYC, with Elie Mystal, justice correspondent for The Nation. Hi.

Julie: Hi, Brian. Hi, Elie, thanks for the opportunity to weigh in. I really just wanted to put a finer point on just some of the points that Elie's bringing up. I think they're excellent points. I think we have to tread lightly when we say white people because my son, and this is anecdotal, but my son is currently a freshman at an Ivy League school. We're solidly middle-class family, maybe upper-middle. Something my son is really struggling with and seeing firsthand is that, absolutely, there's an issue with legacy.

There's an issue with the children of the billionaire class, children of athletes who maybe like Elie was saying are not necessarily there because of their stellar academic reputation. There are a lot of those kids, a lot of sons and daughters of highly wealthy people. There's quite a few on the other side too, people who are economically disadvantaged, who have received some help to get there. There's a real absence of middle-class kids, white or otherwise. I think that's an important point to put on this argument. It's just hard to hear that it's like everybody in a certain racial class because it's really not.

I know Georgetown's done a big study on this about how I think they're calling it the dumbbell effect, or the barbell effect, where you've got a lot on both ends and not a lot in the middle. There's a lot of middle-class white kids that aren't even applying to Ivy League schools because they don't feel like they can afford it. It's just something else. This is a very complicated issue, of course, but I think we have to be careful how we talk about it.

Brian Lehrer: Julie, thank you. Elie?

Elie Mystal: Sure. I'll push back in this way. One of the problems with this debate is that it always gets really hyper-focused on Harvard or Yale or Stanford on these top-tier elite institutions. They're only going to accept 1% or 1.5% of their overall applicants. Again, there are lots of good schools out there that aren't Harvard and Yale and Princeton, and whatever. There's a reason why this case is not just about Harvard, it's also about UNC. It's also about one of the top state universities in the country.

Because when we look at state schools where this gets played out in an even more raw way, those top state schools, not the University of [unintelligible 00:19:36] system, but in a lot of places the top big schools are the places where those middle-class students of any color can really get in and get an affordable top-flight education. This is the same thing where when you start. I'll make this other argument, Brian. Affirmative action to me is even more important when we start talking about state schools because look, Harvard's going to do what Harvard's going to do and Princeton is going to do what Princeton is going to do.

When we talk about state schools, we're talking about schools that the taxpayers pay for. As much as I can say that I understand legally we can't have quotas, quotas were bad, quotas were used to do bad things. I understand that. I'm not saying that we should have quotas, but the state schools should have a responsibility to try to have their classes be representative of the state. You can't tell me that the University of Alabama and the University of Auburn in a state that's 30% Black should be running in there with 11% of a Black student body and half of that is the football team. That can't be.

Brian Lehrer: That's such a great point focusing on state schools more than the Harvards, the Princetons, the Yales, and the Browns because they just don't represent a lot of students. Overall, the state schools just have such huge student bodies and so are so determinative of what happens in this country educationally to a large degree. Let's go to another caller. Levi in Queens, you're on WNYC with Elie Mystal. Hi, Levi.

Levi: Hi. How are you doing, Brian? A pleasure to get back with you one more time. It seems like you're a member of the family over here but--

Brian Lehrer: It makes me feel good.

Levi: Eli, I'm just so encouraged by your enthusiasm for this subject. I heard you earlier I guess this week or last week, look, listen, this thing is really revolving around what you drop that they don't want to acknowledge the need for reparation in the form of affirmative action. I don't care which way they twist it around, paint it, spin it. That's still the bottom line. That's the bottom line. I'm going to add this and get out the way.

This may be an opportunity, man, for us to really build and support the HBCUs because like you just now said, these elite schools are going to do what they want to do. The state schools are subject to whatever influences is going on there. That analogy you just gave on the University of Alabama. I haven't heard it so plain. 30% of the population, 11% of the student body it happens the football team. Maybe we have to just back up and come forward and realize that we are responsible for doing what we need to do for ourselves. I'm going to leave it like that. Listen, do you have an email, Elie, that--

[laughter]

Elie Mystal: Look or ask off air. I'm not going to give that out on air.

Brian Lehrer: All right, Levi, we'll give that to you off the air. Hang on. Yes, I've got a producer who's already picking up I think so. Levi, hang on. Elie doesn't have to give the greater world his email address. They're already hostile to him enough on Twitter. It doesn't have to also come to his inbox. Anything to his point?

Elie Mystal: Yes, I want to just piggyback on one point because it really to me encapsulates the entire affirmative action debate. I've had to talk about this, unfortunately, my whole life. This has been day one at school. Oh, you're in affirmative action, this is important to me. What I've found in my travels is that there are basically two camps of people and I can tell how they're going to view affirmative action when I ask them this question. If you look at a test and I do not think tests are the most way to understand merit or whatever, but if you look at a test and I show you a test and I say that on this test white students are going to score 10 points higher than Black students.

Just on average, over a long enough time, white students are going to score 10-points high. Two kinds of people hear that information. One person says, "Oh, well that's because white kids are-- They make their argument for why it makes sense that white kids score better. The other group of people says, "Wow, that sounds like a dumb test." Another group of people says, "Wow, if you have this kind of disparity, if we start from the assumption that all people are created equal with equal opportunity to whatever, and we have a test now that shows that there is a gap that tells me that your testing is wrong or that you're testing does not mean what you think it means, and that maybe your testing should not be as important when we make all of these other decisions about what's going to happen in people's lives.''

That to me is the core of the affirmative action debate. If you think that a test can capture everything, then sure you're going to be able like, "Well, why do we need affirmative action?" If you understand that even the test itself, even the tools that we use to measure are biased against certain people, then you can start to see that we have to have a more diverse and inclusive way of making this decision is the right way to go.

Brian Lehrer: Biased against certain people, but also maybe as much tell me if you disagree, representative of the history of disadvantage in this country because unless we think that there are different genetic levels of intelligence and different racial groups, we'll just dismiss that. Then if the standardized test results that reflect certain amounts of let's say reading skills and math skills are coming out differently in large demographics of people like racial demographics, then it means that there are social disadvantages leaving--

Elie Mystal: That's true but part of the social disadvantage is also--

Brian Lehrer: -- that need to be addressed. Go ahead.

Elie Mystal: That's absolutely true, Brian, but part of that social disadvantage is also just understanding how white people think. An example I like to use is on the MPRE, the ethics exam for lawyers. There was one question that always stuck up my mind. It was basically the fact pattern was like, your client stiffed you for payment, what do you do? Answer A was call the cops and Answer B was call your friends and go get the money, and Answer C was handle it yourself. I knew because I've been around white people enough that the right answer that they wanted me to give was call the cops. I said, A, call the cops, would I actually call the cops? Hell no because I'm Black and I try to avoid calling the cops at every opportunity. Just think about that little question.

Brian Lehrer: There's a cultural bias there.

Elie Mystal: There's a cultural bias in so many of these exams that so many people don't even see.

Brian Lehrer: We've spent most of our available time talking about the affirmative action case. Let me take Andrew in Long Island City who's going to do a neat segue, I think, into a few minutes on who's going to replace Justice Breyer. Andrew, you're on WNYC with Elie Mystal, justice correspondent for The Nation. Hi.

Andrew: Hey, very excited. I love you both even though I don't know you. I had a question about Sonia Sotomayor because in the context of the segment he did on Clarence Thomas and his life earlier this week or last week about refusal. I've just been wondering this whole time how does Sonia Sotomayor feel when these cases come up as a beneficiary of affirmative action and to really speak about it really eloquently in her memoir. Yes, this is[unintelligible 00:27:49] because obviously I'm not advocating for that but I'm just wondering.

Brian Lehrer: Andrew, thank you so much. Call us again. We should re-earth the clip of Justice Sotomayor on the show talking about exactly that. I imagine, Elie, that we're going to have the same conversation now because she got dinged for saying that she thinks that being a Latina from the Bronx, she brings something additional, I don't remember her exact words, to the job of Supreme Court justice that other people don't bring.

I think a lot of white people took that as, what? She's saying a Latina is somehow more qualified to be a justice than a white person but she really was saying there needs to be a diversity perspective on the bench. Now I imagine we're going to start having the same conversation now that Biden has said out loud that he's going to appoint a Black woman per se.

Elie Mystal: Right. Look, the segue for me from affirmative action to the current Supreme Court debate is simple. When people hear affirmative action, they, white people, assume that we are somehow talking about getting less qualified candidates to take jobs that could have gone to good white people. That's just not the case. What we're talking about is giving people with excellent qualifications who would have been overlooked in the past because people in the past care too much about race and gender. We're going to give people who have historically been overlooked with excellent qualifications a shot at some of these opportunities and jobs and placements.

That's what we're talking about. When you look at the possible nominees for this Supreme Court seat, you're not going to find a better resume. You're not going to find a better legal resume than Ketanji Brown Jackson. You're only going to find an as good resume as Ketanji Brown Jackson. For Brown Jackson, we're talking about a Harvard college, Harvard law school, federal public defender, head of the US censusing commission, been on the district court for eight years, recently confirmed to the the DC court of appeals.

That's more experience than Amy Coney Barrett had by a long way. Leondra Kruger another name that gets [unintelligible 00:30:12] about, Yale law review editor. We're talking about excellently credentialed and qualified people. As was Sonia Sotomayor and yet she got dinged in the same way that Biden's eventual nominee gets dinged. We saw it happen all yesterday, all over the internet. The snide comments suggesting that Sonia Sotomayor wasn't as intelligent as other justices is already starting to happen against the Biden potential nominees.

What they're literally trying to say with a straight face that these women of color aren't as smart, which is really interesting to me because these are the same people that just rallied around Brett Kavanaugh, who is from an insider perspective is not to be a dufus. Like, ask Neil Gorsuch what he thinks about the candle power of Brett Kavanaugh sometimes. If you have him in a truth serum, he will tell you a story. They never want to go back into the qualifications and the intellectual candle power of the people they rally around. They only bring this heat when we're talking about women or people of color and then especially women of color.

Brian Lehrer: Just real quick because we're going way over our time and I don't want to keep you and we have one more thing to do on the show, but--

Elie Mystal: Sorry.

Brian Lehrer: No, it's me, but when you look at the list, like the names that you mentioned in your latest Nation article, Candace Jackson-Akiwumi went to Princeton, went to Yale law school. Leondra Kruger from the California bench who has argued before the Supreme Court many times in the solicitor general's office for President Obama and who you describe as probably the brightest bulb in the room or something like that out of everybody.

Judge Brown Jackson, we talked about following the traditional path she's on the DC Circuit Court of Appeals. Then there's the one that Congressman Jim Clyburn from South Carolina is promoting, Michelle Childs, and no offense to you as a Harvard guy, [chuckles[ but he's using that argument that we need people who are not from the elite circles that the others are coming through. Do you have any thought about that? Then we're out of time.

Elie Mystal: I love it. I think it's a great argument. There are too many Harvard and Yale lawyers on the court. We need professional diversity and educational diversity, as much as we need racial and gender diversity. Judge Childs would be the only person on the Supreme Court that got her law degree from a state school, The University of South Carolina. She's also a labor expert. When you think about the courteous constituencies of the democratic party that Biden is trying to hit with this pick, labor could use a shot in the arm just about now.

Yes, I think Childs would get a very very good look. I still think Brown Jackson's leader in the clubhouse just because she was just confirmed by the Senate for the DC Circuit, with 53 votes. She got Manchin and Sinema and she got Collins Markowski and Lindsey Graham. I think that given Republicans at this point if you can give me a judge that could maybe clear confirmation battle with room to spare, that's a real compelling argument. I certainly think Childs is going to get a serious look, and if she is the pick, she will be a fantastic pick that will add real diversity, not just racial and gender, but professional and educational diversity to a bench that sorely needs it.

Brian Lehrer: Elie Mystal, as we all get to know some of these names in advance of Biden's ultimate choice, justice correspondent for The Nation, his latest article, The Many Remarkable Black Women Who Could Replace Steven Breyer. Elie, thanks as always.

Elie Mystal: Thank you so much. Sorry for going long.

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