The Supreme Court this week announced that it would hear two cases challenging the practice by some U.S. universities of using the race of an applicant as one of the factors that affect admissions.

The announcement, six years after the court upheld the use of affirmative action in a case involving the University of Texas at Austin, is another signal that the high court’s new conservative majority is willing to wade into thorny issues on the fault lines of U.S. politics. 

The court said it would combine two cases — one brought against Harvard University and another against the University of North Carolina. The central question identified by the court in both cases is whether it should overturn its own ruling from 2003 in the case Grutter v. Bollinger, which the court upheld in 2016, that allowed universities to use race as a factor in admissions decisions. 

Both cases were brought by an organization called Students for Fair Admissions. In a statement, the group’s president, Edward Blum, said, “In a multi-racial, multi-ethnic nation like ours, the college admissions bar cannot be raised for some races and ethnic groups but lowered for others. Our nation cannot remedy past discrimination and racial preferences with new discrimination and different racial preferences.” 

Blum’s organization claims that Harvard and the University of North Carolina effectively discriminate against Asian American and white students to the extent that they give any preference to members of other groups, notably African Americans, when making admissions decisions.

The Harvard case comes to the Supreme Court on appeal from the U.S. District Court for the District of Massachusetts, which found that the university’s admissions system, while “not perfect,” was not racially discriminatory. 

‘Merit’ v. ‘accidents of life’ 

Supporters of affirmative action point out that many of the factors typically considered “merit” by advocates of completely race-blind admissions cannot be reliably disentangled from privilege. Do students who achieve excellent grades and test scores with the aid of college-educated parents, or of tutors hired by their parents, truly exhibit more merit than students who achieved slightly lower marks without any outside assistance?

“Those built-in advantages ought to not count as merit. Those aren’t merit,” said Michael A. Olivas, the William B. Bates Distinguished Chair in Law (Emeritus) at the University of Houston Law Center. 

“Those are accidents of life,” Olivas told VOA. “Children can take advantage of opportunities, but the opportunity structures are unequally distributed in our society, and higher education is probably the best manifestation of that.” 

The current college admission system may be imperfect, Olivas said. However, he added, “As (Former British Prime Minister Winston) Churchill once said of democracy, I think it’s the worst of all systems, except for the alternatives. What would you substitute in the alternative?” 

Multiple flashpoints 

The court’s decision to take on an affirmative action case creates another potential flashpoint in the so-called “culture wars” that dominate political discourse in the United States.

So far this term, the court has heard arguments in an abortion case that many experts believe will lead to the overturning or gutting of the 1973 Roe v. Wade decision, which determined that states are not allowed to outlaw access to abortion services

The court has also heard arguments in a controversial gun rights case, New York State Rifle & Pistol Association, Inc., v. Bruen, which could result in the invalidation of numerous state-level gun laws that restrict the ability of individuals to carry firearms outside of their homes. 

Decisions in the abortion and gun rights cases are expected in the coming months. The affirmative action case will not be heard until the court’s next term begins in October. 

The court has already ruled on some controversial cases during its current term.

Earlier this month, it blocked the Biden administration’s effort to require all businesses with 100 or more employees to require workers to be vaccinated against the virus that causes COVID-19 or have a masking and testing policy.

Last August, the court required the Biden administration to reinstitute the controversial Remain in Mexico program initiated by the Trump administration, which required asylum-seekers stopped at the southern border to remain outside U.S. territory while their applications are processed.

Energized conservative majority 

Because former President Donald Trump was able to appoint three new members to the court during his four years in office, the ideological makeup of the court shifted dramatically in a short time. The 5-4 conservative majority that existed during former President Barack Obama’s final term in office often produced rulings friendly to the political left, when a centrist conservative crossed over to vote with the court’s liberal bloc, including a landmark 2015 ruling legalizing same-sex marriage nationwide. 

However, the court is now solidly conservative by a margin of 6-3. 

“You have a very strong working majority of conservative voices in the court now,” said Frederick M. Lawrence, a distinguished lecturer at Georgetown Law Center and the former president of Brandeis University. “By any objective measure, this is the most conservative court in the country in roughly a century.” 

Lawrence said it would not be unreasonable to expect the court to begin revisiting many decisions made by previous incarnations of the court which American conservatives have long opposed.

“There are at least some justices of that conservative group who have very strong views about what the law ought to be, what the court has done over the past quarter-century or half-century, and what they’re trying to roll back,” he told VOA. 

While liberal groups brace for likely defeats, setbacks and reversals, conservatives are eager to continue advancing legal cases that could draw the high court’s attention and, they hope, result in sweeping decisions favorable to their side. 

 
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The Biden administration has been working with European countries and energy producers around the world on ways to supply fuel to Western European countries should Russian President Vladimir Putin slash oil and gas exports in retaliation for sanctions imposed for an invasion of Ukraine. 

“We’ve been working to identify additional volumes of non-Russian natural gas from various areas of the world from North Africa and the Middle East to Asia and the United States,” a senior administration official said in a briefing with reporters on Tuesday. 

The contingency plan is aimed to reassure European allies concerned about the impact of Russia weaponizing its energy supply. Moscow provides approximately 40% of Europe’s natural gas, and European energy stockpiles have been significantly lower in the past few months because of reduced Russian supplies. 

A second senior administration official underscored that oil and gas exports make up about half of Russia’s federal budget revenues, which means that Moscow is just as dependent on its energy revenue as Europe is on its supply. 

“If Russia decides to weaponize its supply of natural gas or crude oil, it wouldn’t be without consequences to the Russian economy,” the official said. 

White House press secretary Jen Psaki declined to confirm reporting that Qatar is one of the countries that the U.S. and European allies are turning to.

“Our approach is not about any one country or any individual entity,” she said while briefing reporters Tuesday, adding that the administration is engaging with major buyers and suppliers of liquefied natural gas to ensure flexibility in existing contracts to enable diversion to Europe if needed. 

President Joe Biden is set to meet with Amir Tamim bin Hamad Al Thani of Qatar at the White House on January 31. According to the White House, ensuring the stability of global energy supplies will be one of the topics discussed by the leaders. 

While having a contingency plan is important, analysts say it won’t be easy to substitute for existing infrastructure, particularly under the current global supply chain crisis. 

“Think of a gas pipeline as a faucet. … It’s super-efficient,” said Kristine Berzina, a senior fellow at The German Marshall Fund of the United States. Berzina told VOA that a contingency plan would be “more of a bucket than it is a faucet.” 

US-Europe unity 

On Monday, Biden said there was total unity among Western powers on the issue of Russia’s pressure on Ukraine. 

“I had a very, very, very good meeting — total unanimity with all the European leaders,” Biden told reporters shortly after a videoconference with European leaders on the escalating Russia-Ukraine conflict. 

Some analysts, however, say Biden maybe overplaying talk of unity. 

“In Europe, people are not as gung-ho and trigger-happy as they are here in the United States,” said Nina Khrushcheva, a professor of international affairs at The New School, in New York. 

For months, the U.S. and European allies have warned of swift and severe economic consequences if Putin invades Ukraine. But some European allies have been nervous about the impact on their economies, including on the supply of Russian natural gas — particularly during the winter months. 

Germany is especially reliant on Russian energy. Berlin has remained ambiguous about whether in the event of war it is prepared to shut down the just-completed Nord Stream 2 undersea pipeline, which will pump natural gas from Russia to Germany. 

“Despite all this conversation of the united West over Russia, it’s not as united,” Khrushcheva said. “And Putin knows that.” 

On Tuesday, Biden reiterated his position. “I made it clear to Putin early on if he went into Ukraine there would be consequences,” he said.

But analysts say that in moving forward with his harsh rhetoric on Russian sanctions, Biden needs to be mindful of the political calculation for European leaders. 

“The Western European population isn’t necessarily willing to suffer for Ukraine,” Berzina said. 

On Monday, the U.S. put 8,500 troops on heightened alert for possible deployment to Eastern Europe, amid escalating tensions in the crisis along the Russia-Ukraine border, where Putin has deployed 127,000 troops, according to U.S. and Ukrainian estimates. 

The Russian troop deployment is similar to Moscow’s move ahead of its 2014 annexation of Crimea, a peninsula on the Black Sea, which triggered a series of international sanctions against Moscow but ultimately failed to deter Putin’s land grab. 

“They have not only shown no signs of de-escalating — they are in fact adding more force capability,” Pentagon spokesman John Kirby said about the Russian military buildup during a press briefing on Monday. 

Both countries stepped up their military preparations Tuesday, with Moscow conducting a series of military exercises and Washington delivering a fresh shipment of weapons to Ukraine. 
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The U.S. Coast Guard searched on Tuesday for 39 people missing for several days after a boat believed to be used for human smuggling capsized off Florida’s coast en route from the Bahamas. 

A good Samaritan called the Coast Guard early Tuesday after rescuing a man clinging to the boat 72 kilometers (45 miles) east of Fort Pierce, the maritime security agency reported on Twitter.

The man said he was with a group of 39 others who left the island of Bimini in the Bahamas on Saturday night. He said the boat capsized in severe weather and that no one was wearing life jackets. 

The Coast Guard is calling it a suspected human smuggling case. Officials said on Twitter that they are searching by air and sea over a roughly 218-kilometer (135-mile) area extending from Bimini to the Fort Pierce Inlet.

A cold front late Saturday brought rough weather to the Bimini area. Tommy Sewell, a local bonefishing guide, said there were 32 kph (20 mph) winds and fierce squalls of rain on Sunday into Monday.

Migrants have long used the islands of the Bahamas as a steppingstone to reach Florida and the United States. They typically try to take advantage of breaks in the weather to make the crossing, but the vessels are often dangerously overloaded and prone to capsizing. There have been thousands of deaths over the years. 

The Coast Guard patrols the waters around Haiti, the Dominican Republic, Cuba and the Bahamas.

For the most part, the migrants are from Haiti and Cuba, but the Royal Bahamas Defense Force has reported apprehending migrants from other parts of the world, including from Colombia and Ecuador earlier this month. 

On Friday, the Coast Guard found 88 Haitians in an overloaded sail freighter west of Great Inagua, Bahamas. 

“Navigating the Florida straits, Windward and Mona Passages … is extremely dangerous and can result in loss of life,” the Coast Guard said in a statement last weekend. 

Last July, the Coast Guard rescued 13 people after their boat capsized off Key West as Tropical Storm Elsa approached.

The survivors said they had left Cuba with 22 people aboard. Nine went missing in the water. 

 
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The United States warned Russia Tuesday that it would face faster and far more severe economic consequences if it invades Ukraine than it did when Moscow annexed Ukraine’s Crimean Peninsula in 2014.

“We are prepared to implement sanctions with massive consequences that were not considered in 2014,” a national security official told reporters in Washington. “That means the gradualism of the past is out. And this time, we’ll start at the top of the escalation ladder and stay there.”

The official, speaking anonymously, said the U.S. is “also prepared to impose novel export controls” to hobble the Russian economy.

“You can think of these export controls as trade restrictions in the service of broader U.S. national security interests,” the official said.

“We use them to prohibit the export of products from Russia,” the official said. “And given the reason they work is if you … step back and look at the global dominance of U.S.-origin software technology, the export control options we’re considering alongside our allies and partners would hit (Russian President Vladimir) Putin’s strategic ambitions to industrialize his economy quite hard, and it would impair areas that are of importance to him, whether it’s in artificial intelligence, quantum computing, or defense or aerospace or other key sectors.”

The U.S. and its allies imposed less severe economic sanctions against Moscow after its Crimean takeover, but they ultimately proved ineffective, and the peninsula remains under Russian control.

The U.S. is also working with energy producers around the world, another security official said, to supply fuel to Western European countries in the event Putin cuts off Russia’s flow of natural gas to the West.

One of the U.S. security officials echoed President Joe Biden in saying that the U.S. and its Western allies are “unified in our intention to impose massive consequences that would deliver a severe and immediate blow to Russia over time, make its economy even more brittle and undercut Putin’s aspirations to exert influence on the world stage.”

Tuesday’s White House warning came as Russia said it is watching “with great concern” as the U.S. on Monday put 8,500 troops on heightened alert for possible deployment to Eastern Europe. 

Kremlin spokesman Dmitry Peskov repeated to reporters Russian accusations that the United States is escalating tensions in the crisis along the Russia-Ukraine border, where Putin has deployed an estimated 127,000 troops. 

Biden met virtually Monday with key European leaders to discuss the ongoing threat of a Russian invasion of Ukraine.  

“I had a very, very, very good meeting — total unanimity with all the European leaders,” Biden told reporters after hosting a secure video call with allied leaders from Europe, the European Union and NATO.  

British Prime Minister Boris Johnson’s office released a statement that supported Biden’s summation, saying, “The leaders agreed on the importance of international unity in the face of growing Russian hostility.” 

Biden has not decided whether to move U.S. military equipment and personnel closer to Russia. But White House press secretary Jen Psaki said in advance of the meeting with the European officials that the United States has “always said we’d support allies on the eastern flank” abutting Russia.  

U.S. Defense Secretary Lloyd Austin placed 8,500 U.S. military personnel on “high alert” of being dispatched to Eastern Europe, where most of them could be activated as part of a NATO response force if Russia invades Ukraine.  

“It’s very clear the Russians have no intention right now of de-escalating,” Pentagon spokesperson John Kirby told reporters. “What this is about, though, is reassurance to our NATO allies.” 

Biden has ruled out sending troops to Ukraine if Russia invades the onetime Soviet republic but vowed to impose quick and severe economic sanctions on Moscow.  
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It’s a key part of President Joe Biden’s plans to fight major ransomware attacks and digital espionage campaigns: creating a board of experts that would investigate major incidents to see what went wrong and try to prevent the problems from happening again — much like a transportation safety board does with plane crashes.

But eight months after Biden signed an executive order creating the Cyber Safety Review Board it still hasn’t been set up. That means critical tasks haven’t been completed, including an investigation of the massive SolarWinds espionage campaign first discovered more than a year ago. Russian hackers stole data from several federal agencies and private companies.

Some supporters of the new board say the delay could hurt national security and comes amid growing concerns of a potential conflict with Russia over Ukraine that could involve nation-state cyberattacks. The FBI and other federal agencies recently released an advisory — aimed particularly at critical infrastructure like utilities — on Russian state hackers’ methods and techniques.

“We will never get ahead of these threats if it takes us nearly a year to simply organize a group to investigate major breaches like SolarWinds,” said Sen. Mark Warner, a Virginia Democrat who leads the Senate Intelligence Committee. “Such a delay is detrimental to our national security and I urge the administration to expedite its process.”

Biden’s order, signed in May, gives the board 90 days to investigate the SolarWinds hack once it’s established. But there’s no timeline for creating the board itself, a job designated to Department of Homeland Security Secretary Alejandro Mayorkas.

In response to questions from The Associated Press, DHS said in a statement it was far along in setting it up and anticipated a “near-term announcement,” but did not address why the process has taken so long.

Scott Shackelford, the cybersecurity program chair at Indiana University and an advocate for creating a cyber review board, said having a rigorous study about what happened in a past hack like SolarWinds is a way of helping prevent similar attacks.

“It sure is taking, my goodness, quite a while to get it going,” Shackelford said. “It’s certainly past time where we could see some positive benefits from having it stood up.”

The Biden administration has made improving cybersecurity a top priority and taken steps to bolster defenses, but this is not the first time lawmakers have been unhappy with the pace of progress. Last year several lawmakers complained it took the administration too long to name a national cyber director, a new position created by Congress.

The SolarWinds hack exploited vulnerabilities in the software supply-chain system and went undetected for most of 2020 despite compromises at a broad swath of federal agencies and dozens of companies, primarily telecommunications and information technology providers. The hacking campaign is named SolarWinds after the U.S. software company whose product was exploited in the first-stage infection of that effort.

The hack highlighted the Russians’ skill at getting to high-level targets. The AP previously reported that SolarWinds hackers had gained access to emails belonging to the then-acting Homeland Security Secretary Chad Wolf.

The Biden administration has kept many of the details about the cyberespionage campaign hidden.

The Justice Department, for instance, said in July that 27 U.S. attorney offices around the country had at least one employee’s email account compromised during the hacking campaign. It did not provide details about what kind of information was taken and what impact such a hack may have had on ongoing cases.

The New York-based staff of the DOJ Antitrust Division also had files stolen by the SolarWinds hackers, according to one former senior official briefed on the hack who was not authorized to speak about it publicly and requested anonymity. That breach has not previously been reported. The Antitrust Division investigates private companies and has access to highly sensitive corporate data.

The federal government has undertaken reviews of the SolarWinds hack. The Government Accountability Office issued a report this month on the SolarWinds hack and another major hacking incident that found there was sometimes a slow and difficult process for sharing information between government agencies and the private sector, The National Security Council also conducted a review of the SolarWinds hack last year, according to the GAO report.

But having the new board conduct an independent, thorough examination of the SolarWinds hack could identify inconspicuous security gaps and issues that others may have missed, said Christopher Hart, a former National Transportation Safety Board chairman who has advocated for the creation of a cyber review board.

“Most of the crashes that the NTSB really goes after … are ones that are a surprise even to the security experts,” Hart said. “They weren’t really obvious things, they were things that really took some deep digging to figure out what went wrong.”
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