"This opinion breaks open all sorts of different aspects of American life where race has been overused, and says, 'No more.'"

Transcript of Podcast with Adam Mortara, who argued Students for Fair Admissions vs Harvard University

As always, paid subscribers have access to transcripts for all audio and video podcasts.

In this episode of the Year Zero podcast from two weeks ago, I talk with Adam Mortara, the attorney who argued Students for Fair Admission vs. Harvard University, alleging anti-Asian discrimination, which eventually yielded last month’s landmark Supreme Court ruling ending racial preferences in college admissions and, as we discuss at length in this conversation, curtailing it in many other aspects of American life.

Wesley Yang

I'm here with Adam Mortara, addressing you from the other side of a landmark decision that Mortara has helped usher into existence, which removes the Supreme Court's constitutional sanction on the practice of racial preferences in college admissions and perhaps portends a whole new era in the court and in American life. I just want to take this moment to get Mortara's sense of what he's achieved and his feelings in the wake of an enormous victory. I think it was one that no one anticipated in its completeness when this case was filed back in 2014, but that was always a possibility. Of course, that was the reason they went ahead with the case. I want to get a full sense of the sweep of this as a movement in the history of American life and in his own role. We should begin by getting your feelings right now on the other side of victory in Students for Fair Admissions versus Harvard University.

Adam Mortara 1:46

Thank you, Wesley. When the decision came out, I was sitting in my hotel room in DC, and some of the guys had gone to the court. The guys who are at the court can't read the decision, because the summaries are being read from the bench. So, I and the guys that are not in the court are furiously reading. And it doesn't take long to come to the conclusion that this is either a 9.5 or 9.9, out of 10, of what Students for Fair Admissions was asking for. That was more than I expected, even after the argument. There were essentially zero qualifications. The one thing that we knew was coming, was the statements made in Part 6 of the majority opinion about essays. And then it's immediately taken back with “Don't you dare construct an essay bypass route to this decision.” The next two sentences are just fabulous. More than we could possibly have asked for. There's an opinion from Justice Kavanaugh and you think to yourself “Oh, my gosh, what is he saying is okay?” And he's not saying anything is okay. There's nothing taken back. The concurring opinions of Justice Thomas is a tour de force which will go unrecognized by the mainstream for all the reasons that he is so maligned. It's incredible. I had my 12-year-old daughter reading it. And then, on a rather personal note, I called my wife and she couldn't even understand me, because I was bawling. I'm in tears, because I miss my friend, Will Consovoy.

I'll tell you a story of this case. I'll tell you a story of two guys, Will Consovoy and Adam Mortara. And all the other guys at Consovoy, McCarthy I’ll mention along the way. But Adam Mortara leaves the court in July this week, 2003. Two weeks after the Grutter decision comes out, I leave my clerkship with Clarence Thomas. We lost the Grutter case, or Justice Thomas lost the case, and I didn't want to think about affirmative action ever again. Later, the Michigan Civil Rights Initiative passes, and I kind of chuckle to myself, “You reap what you sow, University of Michigan,” and that kind of makes me happy to see change like that. I really don't want to think about it.

Along comes this guy, Will Consovoy, who clerked for the court six years after me. For whatever reason, he sees it differently. He sees the long arc and he sees it as a fight worth fighting to get rid of race discrimination in every aspect of American life, but particularly college admissions. He walks out of the court not saying, “I don't want to hear about this ever again, and I'm just going to go off and litigate IP cases and make money,” which is what I did. He devotes his life to doing it. I mean, literally, his life. He died in January. He starts off doing the Fisher cases. They get a partial victory in Fisher I, and they ultimately lose in Fisher II.

I know Will, we're friends, we met around 2009, 2010, and I'd always pour friendly skepticism on what he was doing. “I don't know why you think this is ever going to work out. The court stinks. Kennedy's not going to stick with us.” The first argument I ever won with him, he was convinced that Kennedy would always hold the line against affirmative action because of his opinion on Grutter. And I said, I just don't think it. He'll ditch us at the last second,” which Kennedy did. But I was very skeptical of the whole thing, even after the Harvard case was filed, even with the new recognition that Asian Americans had a prominent voice and role to play in the discussion of whether these things were a good idea, permissible or constitutional. That new recognition, which came with the Harvard suit, I still told them, “I don't know what you're doing. We're never going to win.” Even after the 2016 election, I don't think I changed my mind with the ascension of justice Gorsuch in Justice Scalia's place.

They filed the case in 2014, and they're litigating it, litigating it, litigating. They being Will Consovoy, and his partner, Tom McCarthy. They founded the firm, and eight weeks after they founded the firm, they filed the Harvard complaint. I don't know what you want to call me. Maybe more skeptical, jaded, less principled -- I don't want to call myself less principled, but maybe that's what it was. Or less dedicated to fighting for principle.

Will calls me in April 2018, and says, “We're going to have to try this case. My firm hasn't really tried any cases, or not big ones, and I need help. I don't know what to do. I got these big firm lawyers on the other side, and the case is going to trial.” I said, “Let me give you some names of people that might help.” I didn't volunteer myself. Will and I talked all the time, very close friends. He called me back two weeks later. It's like the Dick Cheney, Vice Presidential search for George Bush. He calls me back and says, “I think the person that really should try this case for me is you.” And I said, “I don't know. I don't know if I want to do this or not. That's not what I do. I try high stakes patent cases. I don't want to go down in history as the guy who killed affirmative action.” I actually said that to him. I said these things. He said, “Get on the case. Just get on the protective order so that you can see confidential documents, and I will come to Chicago, I'll show you this stuff, and you will agree this is going to be the most important thing you've ever done.”

And I did. I trusted him. Got on the case. Saw the documents. Saw the internal Harvard reports where it proved that they knew they were discriminating against Asians from the go.

I walked out of the conference room. I'm kind of an emotional guy, and I’m misting up to my firm's General Counsel saying, “We have to do this, we have to do it.” And that's when Will got me off the sidelines. On the day of the decision, my wife can't even understand me because I miss him so much. And I do. It is impossible to think about this case and not think about Will. Then of course, you can’t think about this case without thinking about Edward Blum. The two are inseparable, and Edward, who's the nicest, sweetest guy in the world, and is in no way a committed right winger in any sense of the word, is just a man of principle on this issue. He is the most mild, humble, modest, sweet guy who has just steadfastly fought for this issue. Defeat doesn't even process for him. He just picks himself up and just keeps going. I saw a video of a minor league ballplayer called to the majors for the first time at the age of 37 or something like that. I thought to myself, how steadfast must that guy have been to stick it out, to get his big break, to get his call-up at an advanced age, and Edward’s the same way. He's never going to stop. We could have lost this case, and I swear to you, he would have been disappointed and said, “What are we going to do next? Let's keep going.” And he would have.

So you put those two guys together, and I'm just the guy who tried the case and has to try in a minor way to carry on Will’s legacy along with his partners at Consovoy, McCarthy, the greatest team on Earth.

Wesley Yang

What did the court rule in this case?

Adam Mortara

I think there's three ways to think about it. The easiest way, is that the court de facto overruled the previous Grutter decision, and said race can never be a consideration in college admissions. Period. No justification is ever going to be sufficient. Game over. The second layer to that is that the Court acknowledged some very important precepts that we have to put together. One, the very important precepts are that race can never be used in a negative way to affect somebody's admissions outcome, one. Two: because there's only a limited number of seats in the admissions framework, using race, even if you think it's in a positive way for candidate A, means that for candidate B, who is not the same race, it's being used in a negative way, therefore you fall afoul of the first principle and that's how you get to race can never, ever be used. A third way to understand the decision is it eliminates this very bizarre exception to the Court's ordinary skepticism about racial classifications, and just rights the law. But it’s bizarre that it took 20 years for the court to get rid of this profound exception to the general rule that racial classifications are simply per se impermissible under the Constitution. That is kind of the same thing as number one, but it has a normative valence to it, which is that that the affirmative action line of cases always stood out as a very bizarre exception to the Court's general hostility to racial classifications, certainly the Chief Justices’ and Justice Thomas’. That's a way to understand it, as fixing something that was wrong, which is a way a lot of people understand the Dobbs decision from last term.

Wesley Yang

So does it overrule de facto, Grutter?

Adam Mortara

They didn't say it in the majority opinion. Justice Thomas says it's quite obvious.

Wesley Yang

Does it overrule the exception for the benefits of diversity that one could use race?

Adam Mortara

I think it does, because it says this is not a compelling state interest. I think absolutely, there's no use of race that can be authorized to advance that asserted interest. It's not saying diversity isn't good, or important. I think an interesting thought hypothetical is, “Can a university have preferences for men, so as to maintain a sex balance at a university because they think the sex balance is important?” And of course, sex discrimination is treated differently than race discrimination. I don't know the answer to that question. I think it's an interesting one. I think it's probably one that will come up in the coming decades to follow because, as you know, men and women have somewhat different academic credentials coming into college. I don't think the court is saying diversity isn't an interest. I think it's saying it can't possibly be an interest that would ever justify race discrimination.

Wesley Yang

So does it take us back to the world of 1977?

Adam Mortara

Prior to the Bakke? I think as a practical matter, no, because prior to Bakke, people thought that you could have quotas and it would be okay. I think it takes us back to a legal world that could have existed if Justice Stevens had prevailed in Bakke, with the kind of “This is not possible, period” rule. If you think about the history of elite admissions, race has probably been used since Harvard started using it to keep Jews out in the early 20th century. We have never been in a mode where there's been an express, legal regime, plus an enforcement mechanism of private litigants and others, to enforce a race-blind admissions process since we went from our all-testing-based admissions process, or open admissions, where you went to the University, and if you failed out, you failed out. Karabel’s book does a nice job of going through the history of the admissions process, but in the 100 years or so that we've had individualized, holistic admissions, I don't think we've ever had it race blind, or as close to race blind as we are going to get it, because, of course, there is an exception for essays that's discussed in Chief Justice Roberts’ opinion. Nothing that involves human actors who can see a name like, “Wesley Yang,” or even “Adam Mortara,” though sometimes I get mistaken for being Japanese instead of Italian. No, it's not possible to get race completely out of a system that's run by humans, but we're going to be as close as we could possibly get.

Wesley Yang

Harvard immediately issued a statement saying, “The court has said that candidates can make reference to the role that race has had in their individual development, and we will be complying with that aspect,” signaling that there's going to be a stronger emphasis on the essays. This is, of course, something that Roberts dealt with in his decision, but you already have people saying, “Oh, this is actually going to make things worse. It's going to turn essays even more into the trauma porn that they already are, based upon race.” That will be the loophole that will undo the whole impact of this decision.

Adam Mortara

It looked like it was prepared before the opinion came out. They must have known it was coming.

It's wrong in the sense that it can't possibly undo the whole impact of the opinion. It does no more than restate the Wesley Yang, Adam Mortara joke I just made, which is that you can't remove from people's brains, all consciousness of the racial identity of the person that they're dealing with, even if you remove the checkbox, which it seems likely that all institutions will do because there's no lawful use to be made of the checkbox. You can't do it. There are kids called Kwan and Ma and Park. It’s not possible. The point about the essays is, of course — and you used the phrase “trauma porn” — it will inspire kids to talk about race. Probably a lot because they think it'll help them, but the Chief Justice said quite clearly, “Don't you dare turn this into a mechanism to flout, or an end-around of what we're saying about race.”

Imagine a circumstance where “Yes, I overcame racial prejudice” can be on a white applicant’s essay. Certainly it can be on Asian applicants’ essays, when you look at the last three years, and the incredible rise in anti-Asian violence and expression, or seemingly incredible rise — I'm going on what I see, which some have attributed to the Coronavirus pandemic. As you can tell from my voice, I don't think that's really why it's happening. I don't think that's why you think it's happening, reading your writings.

It's certainly up to the Asians to be able to write about this in a meaningful and persuasive way. If you're treating Asian kids differently when they write about hardship from racial discrimination, then you are from treating Black kids when they're writing about hardship and racial discrimination, then that's illegal. That’s what Chief Justice Roberts is saying, and we'll be able to prove it. It won't be that hard to prove. And there will be whistleblowers, people inside these institutions that will say, “No, we're doing it wrong.” Also, think about it. How is the Harvard admissions officer going to keep track of these things? I mean, this guy is Black with racial hardship, this guy is Asian with racial hardship. Once you've written down that one is Black and one is Asian, that's the exact thing the court says is illegal. So, I think it's going to be very difficult.

The other point I'll make, which is one I think I've made to you previously, is there are two ways discrimination happened at Harvard, and by extension, every elite institution. One is the individual admissions officer making a judgment about the candidate. That's mostly what we've been talking about. “Oh, you know, Alan Chu wants to be a doctor. He's got 1600 on his SATs, he's a champion debater. But you know what? I’ve got 100 Alan Chus. So guess what. You're kind of a dime a dozen. You get a personal rating of a three. Whereas Jim White over here, he's Black and he's got a great SATs score, he wants to be a doctor, and he's a champion debater. Oh, my gosh, there is only one of these every X years, I gotta get him in. Personal rating: one. That's how it worked at Harvard. African Americans systematically benefited by the admissions officers assigning them higher personal ratings. That's one of the primary ways in which this worked. Asian Americans were dramatically crushed by just their numerosity and stereotyping. That's an individual admissions officer.

The other way that it worked is there was explicit control over the ultimate composition of the student body, done from the top and kind of the macroscopic way that race discrimination worked. The dean would say, “Give me my racial stats.” We have emails that said, “Dean Fitzsimmons wants his racial stats.” I mean, can you imagine? And he would get a cute little spreadsheet with the racial breakdown of the admitted class as it was forming up. And of course, they had total control over the ultimate demographic district configuration of the class and they kept basically the same for Asians for over a decade until we filed the lawsuit, and then they kind of let loose on it a little bit.

That second piece, you can't even imagine somebody in the post Students for Fair Admissions against Harvard era, asking for the aggregate racial statistics on the composition of the incoming class as it's being formed. No way. No one will take that risk. It's profoundly and per se illegal now. And it just won't happen. So you can take the macroscopic race out. And then finally, to the people who say that the essay thing takes it all back, I'd say the following: admissions officers, they're not evil, generally, and they're going to do their best. They're going to try to follow the law. They're not going to talk about race outside of the extremely limited context they've been given. Taking the conversation out of the room means race will just have less of an impact on admissions, period. And is it going to be perfect? No system would be perfect. But is it going to be a giant step? I'm utterly convinced of it.