The controversy animated Roberts, himself a graduate of Harvard College and Law School.

“Take two African American applicants,” he said to lawyer Seth Waxman, representing Harvard. “They both can get a tip, right, based on their race? And yet they may have entirely different views. Some of their views may contribute to diversity from the perspective of Asians or Whites. Some of them may not. And yet it’s true that they’re eligible for the same increase in the opportunities for admission based solely on their skin color?” Waxman acknowledged that being an African American or being a Hispanic could give the applicant a boost and may even be determinative of who gets a coveted place in the freshman class.

“Race, for some highly qualified applicants can be the determinative factor, just as being, you know, an oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player will be the tip,” Waxman said, offering an example that Roberts immediately skewered.

“We did not fight a Civil War about oboe players,” he rejoined. “We did fight a Civil War to eliminate racial discrimination, and that’s why it’s a matter of considerable concern.”