When the Supreme Court gutted affirmative action in higher education last year, the ruling didn’t cover military academies. A footnote in Chief Justice John Roberts’ opinion for the six Republican appointees said that such schools weren’t involved in the appeal and that the ruling “does not address the issue, in light of the potentially distinct interests that military academies may present.” 

Now the same group that brought last year’s case to the high court is back, pressing one against West Point. Students for Fair Admissions filed an emergency application for an injunction pending appeal. A response to the application is due Tuesday by 5 p.m. ET. 

Dissenting justices in last year’s decision, involving Harvard and the University of North Carolina, called out the majority’s military carve-out. Justice Sonia Sotomayor wrote that it “only highlights the arbitrariness of its [the majority’s] decision and further proves that the Fourteenth Amendment does not categorically prohibit the use of race in college admissions.” Justice Ketanji Brown Jackson wrote that the court “has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore).”

With the prospect of a natural follow-on to last year’s decision, the court could be forced to confront that awkward distinction.   

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