If readers think the US Supreme Court (Scotus) really shook things up in the recent Dobbs decision – that’s the one that over-turned the 1973 Roe v. Wade case that basically had made up (out of thin, penumbral vapours) a constitutional right to an abortion in favour of leaving it to the democratic process in all fifty states, a result any honest reading of the US Constitution would deliver, progressive lefty whining notwithstanding – then buckle up your seatbelts because you may not have seen anything yet. This week the US Supreme Court heard argument in the Harvard University and University of North Carolina affirmative action case. This could be the biggest case in over half a century. Seriously. At stake is the whole affirmative action business model of American universities (namely, find the favoured ‘victims’ of the progressive Left and do what you can to boost their numbers and faculty places in the name of ‘diversity’).

By way of background the whole ‘diversity’ rationale goes back to a late 1970s case called Bakke. The Supreme Court back then and right through the Grutter case till now has not been prepared to allow universities to indulge in open, documented, transparent, points systems types of affirmative action.  That breaches the 14th Amendment’s equal protection of the law guarantee. However, if a university claims to value a ‘diverse campus’ it can shun explicit formulae; it can informally sort of ‘eyeball’ applications using criteria related to such loosey-goosey things as ‘personality’; and the university can end up with a more virulent form of (let’s be blunt here) quotas for various preferred groups (but note that it’s always just the political Left’s preferred groups, not all groups – they don’t stack the deck for white, male, ex-military types, for instance). The court’s message for forty-odd years to the universities has been ‘just keep this out of sight and opaque please all you university administrators’.

So it is this forty-plus-year Supreme Court-sanctioned form of affirmative action and hidden quotas to get into universities that this new case is attacking. More than a decade ago this case was started in order to work its way to the top court. It will cost the plaintiffs millions and millions of dollars. The main group bringing the case represents Asian American plaintiffs. They want a merit-based system for university admissions. Consider Harvard. Right now, in general terms, what an Asian student needs to get admitted to Harvard are high school marks and SAT-test score results that are more than a standard of deviation higher than what students from other groups need (such as black Americans and Hispanic Americans). During discovery in the first instance trial they lost, the plaintiffs got documents from Harvard University showing that virtually all Asian applicants are scored incredibly lowly on the ‘personality criterion’. This is what lets the other groups with way lower marks get in.  Imagine it. Nearly all Asians are judged by Harvard, in interviews, to have ‘loser personalities’. What a coincidence, right! In fact, this echoes what the Ivy League universities used to do to stop too many Jews getting in back in the 1950s. ‘Not clubbable enough, old boy.’ The extensive discovery has been devastating for the universities. Just as bad, for the business model of today’s universities, these Asian students overwhelmingly tend to shun the women’s studies/grievance politics-type courses.

So the question is whether the current Supreme Court hearing the case this week will undo this ‘diversity is our God’ behemoth in the same way it was brave and undid Roe v. Wade. If it does, the consequences I think will be more far-reaching than what we saw after the Dobbs decision. In essence, the legal case can be seen as throwing up a statutory interpretation point (namely, how to read the Title VI Federal statute) and a constitutional interpretation point (here, how to understand the 14th Amendment equal protection guarantee). The temptation for ‘give them half a loaf’ types like Chief Justice Roberts (who, recall, tried to split the difference in Dobbs) will be to give the plaintiffs a win on the statute but not on the constitution to limit the case’s implications. But we have seen that all the Trump-appointed Supremes have been brave and interpretively conservative (something no sane observer could say about the High Court justices appointed by nine years of Coalition governments, with one possible exception). At any rate, if you think the Left and the progressives went crazy on the abortion case, if this one goes against them the reaction will be apocalyptic. Moreover, if you think Australian universities don’t indulge in an opaque, muddied form of ‘diversity-driven’ quotas or affirmative action for favoured groups, well, you’re dreamin’.

And as I’m on the topic of big court cases let me make a few passing remarks on the Bruce Lehrmann rape trial that recently saw the jury dismissed. I say nothing on the merits of the case because I believe strongly in the presumption of innocence and in fair trials for everyone. My observation is this, and I make it as a Canadian and British-trained lawyer. How can anyone get a fair trial when before it goes to trial the supposed victim gets invited to the Press Club; when the supposed victim is made a senior visiting fellow of an ANU women’s global leadership institute and is gushed over by Julia Gillard; when journalists win Logies taking sides; when (most disgracefully of all) the then prime minister Scott Morrison makes an apology to the supposed victim on the floor of Parliament? Seriously, public institutions in this country have been involved in taking sides in this matter and elevating credibility before a verdict and in direct conflict with the presumption of innocence. It’s been disgraceful. It would never have happened in Canada, not a chance (and that is with Justin Trudeau as PM and with an elite far more woke and left-wing than here). They, at least, still understand the presumption of innocence. And no one alleging rape would walk away unscathed from blowing up the plausibility of a future trial by making statements out of court of the sort we saw here.

Leave aside all views on the substance of this case. How can anyone with a straight face think the accused here can get a fair trial? Heck, I know Australia has moved away from sequestering juries but why didn’t they make an exception here and put them in a hotel with no internet till they got a verdict. That would certainly have happened in Canada with this sort of high-profile case and with so many temptations.

The one area that in my view our High Court has shown itself of late to be world class is big-ticket criminal law trials – think Pell, think Patel.

But really, it’s an embarrassment when an accused has to wait for the High Court of Australia to uphold the basic criminal procedural protections and the presumption of innocence.