The Trump administration filed a case against Yale in October, and a newly seated Biden administration — which is expected to support affirmative action policy — could choose to review and drop that case, experts said.
“I think the Biden administration is going to take a really careful look at the Yale case,” said Samuel Bagenstos, a law professor at the University of Michigan, and a principal deputy assistant attorney general for civil rights in the Obama administration.
However, Students for Fair Admissions has petitioned the court to add it as a plaintiff in the Yale case, a move that, if approved, would keep the case alive even if the Biden administration drops out. The Trump administration has also filed an amicus brief in the Harvard case that the Biden administration might withdraw, but that would not prevent the case from proceeding.
Now that the Supreme Court has a 6-3 conservative majority, including the Trump appointees Brett M. Kavanaugh, Amy Coney Barrett and Neil M. Gorsuch, it has a chance to make the biggest change in affirmative action admissions in more than 40 years, when it forbade the use of racial quotas but supported the principle of diversity.
“I think there are six votes on the Supreme Court to dramatically limit affirmative action and to overrule earlier decisions allowing it, and that’s going to be true whether it’s Trump or Biden,” said Erwin Chemerinsky, a constitutional law scholar and dean of the University of California, Berkeley, law school.
The chance may be hard to resist, agreed Mr. Bagenstos. “Affirmative action is something that’s been a big agenda item of the conservative movement for a long time,” he said. “I think the justices know exactly what they want to do with these cases.”
In a referendum vote last week, California voters narrowly approved maintaining the state’s ban on affirmative action in college admissions, indicating some softness in public opinion on the issue even in a liberal state.