Supreme Court Litigator Reflects on SFFA v. Harvard

Source: Consovoy McCarthy PLLC

“I recommend [doing a clerkship]. Because people will hear about that job, and think that you aren’t stupid; and you may be stupid.”

On Thursday, Cameron Norris, partner at Consovoy McCarthy and former clerk for Justice Clarence Thomas, spoke at a Federalist Society event. In October of 2022, Norris argued the watershed case Students for Fair Admission (SFFA) v. Harvard (2023) in front of the Supreme Court. SFFA effectively overturned Grutter v. Bollinger (2003) and Regents of the University of California v. Bakke (1978) in a 6–2 ruling, ending the use of race in college admissions.

The event was widely attended and drew interested parties from all political persuasions and backgrounds. Norris spoke with a mastery of his subject matter and

a down-to-earth charisma befitting a successful Supreme Court litigator. “I peaked at the age of 34,” he said, talking about his experience arguing SFFA. Norris had been tapped last-minute to speak in front of the Court.  “We always thought Will Consovoy would argue it.” But in a tragic turn of events, Consovoy’s wife passed away and two months later he was diagnosed with brain cancer. Norris filled the spot. “My firm was gracious enough to say, ‘That guy wrote the brief for Harvard. Let him do it.’”

SFFA was approached as two separate cases, one against Harvard, a private school, and the other against the University of North Carolina Chapel Hill, a public school. Norris said they had always imagined that the cases would be heard at the same time. Private schools had incorporated equal protection through Title IX, yet “[Norris] needed a public school to make it stick.” But there were not many options. As of 2023, very few public schools were publicly using race as a factor in admissions. The citizens of Michigan, the location of Grutter, had voted to enact an amendment to ban race in admissions after the Supreme Court’s ruling in that case. California had passed a similar amendment even earlier in 1996. “The only choices were UNC Chapel Hill, this institution [UVA], and Wisconsin." So they sued Harvard, “the big target,” and UNC was “along for the ride.”

Why Harvard? The accepted system of affirmative action originated from Harvard, which entered an amicus brief in Grutter. They employed a system of admissions now known as “holistic” admissions, where a subjective personality score was used to grade applicants, instead of expressly using race as a “plus factor.” That system originated from attempts to decrease the “unnaturally high number” of Jewish students at Harvard in the 1920s. In Grutter, Justice Sandra Day O’Connor wrote that because Michigan Law was using Harvard’s holistic system, the use of race was still acceptable. Meanwhile, Harvard itself had gone “completely unexamined.”

And at Harvard, much like the Jews of the 1920s, Asian Americans were suffering discrimination. Despite the high grades and test scores of Asian applicants, as the number of Asian applications increased, their acceptance at the Ivies capped out at eleven or twelve percent. Harvard used four different scores to assess applicants: Athletic, Academic, Personal, and Extracurricular. While Asian applicants had a  “significant” lead in Academics, and tied other races in Athletics and Extracurriculars, they were “getting clobbered” in Personal, where they were significantly worse than whites and every other racial group. The SFFA litigation, Norris said, only tried to prove that Asian applicants were getting discriminated against compared to whites, but left out all other groups.

As for the oral augment itself, Norris said he was “wobbly” but optimistic. The thing asked of the Court was to overrule the precedents of Grutter and Bakke. Norris said the Court would almost certainly not have taken the case unless it intended to do so. While Norris prepared extensively for the argument, and took two five hour Energies before approaching the stand (“Ten hours of energy. I don’t think the surgeon general would recommend that”), he said that the actual argument was far more like a policy discussion than a presentation on the specifics of the case. At one point, when Seth Waxman, attorney for Harvard, gave an example of using race as a datapoint in admissions like being an “elite oboe player,” Norris said Chief Justice Roberts responded, “We didn’t fight a civil war over oboe players.”

Ultimately, the Court did not officially overrule Grutter or Bakke. “The word ‘overrule’ does not appear in the opinion.” Norris doesn’t think this makes the opinion unclear, and suggested that not “officially” overruling was a way to adhere to the twenty-five-year sunset for affirmative action intimated by Justice O’Connor in Grutter “[A]ll governmental use of race must have a logical end point. . . . We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Grutter v. Bollinger, 539 U.S. 306, 342–43 (2003). Twenty-five years from 2003 is 2028, the year when the last students admitted to Harvard under an affirmative action regime are scheduled to graduate.

Before concluding, Norris fielded questions from the audience. He conceded that the use of race—or factors that are proxies for race—in admissions was still likely, given that the Court allowed race to be mentioned in personal statements relating to racial hardship. “You can’t see into admissions offices. Can’t see if they’ve shut off race in their mind.” He went on to say that in his argument, he said that the use of essays was OK “so long as you give equal credit to a student of any race for a story about discrimination. That’s just not how it will be applied.” Regarding any challenges to that, he said, graciously, “[Chief Justice Roberts] basically incorporated my argument into his opinion, so I’m right.”

One student mentioned how the use of racial hardship or race in admissions essays had become a “fault line” this year in admissions, with one New York Times article reporting that students of all races were caught between mentioning it or not, some spurred by the Trump administration’s crackdown on pro-D.E.I. institutions.[1] The Asian applicant mentioned in the NYT article also declined to mention her race, specifically because she thought it would disadvantage her in the college admissions process.

Norris said that the next cases will be against institutions that claim they are no longer using race as a criterion, but that he suspects still are, such as the University of California, Los Angeles Medical School. “UCLA is an interesting test case to see what kind of evidence you’ll find at a school that claims they do not use race.” He pointed out that even post-SFFA, Harvard had to tell its alumni interviewers to “stop telling [Harvard] the race” of applicants. “They thought it was ‘helpful’ to report the race of the students.” Norris thinks Harvard just got sick of redacting the information for admissions reviewers in applicant packets.

[1] https://www.nytimes.com/2026/01/13/us/college-admissions-essays-affirmative-action-racial-identity.html.