During oral arguments in SFFA v. Harvard, Justice Kagan tried to broaden the case beyond higher education. She explained that many "institutions" need to rely on racial preferences to achieve their diversity goals. (Notice how the word "institution" presumptively refers to an organization that pursues progressive goals, for an entity that leans conservative is no longer behaving like an "institution.") During a colloquy with Cam Norris, Justice Kagan asked about judges who hire law clerks based, at least in part of race:
JUSTICE KAGAN: Do you think that if you're a law firm or if you're a judge, if you're a judge and you want to have a diverse set of clerks, do you think a judge can't think about that in making clerkship decisions?
Norris responded that judges can be aware of a prospective clerk's race, but cannot use race to distinguish between candidates.
