In Grutter v. Bollinger, a landmark 2003 case that reaffirmed the validity of affirmative action in college admissions, Justice Sandra Day O’Connor infamously put an expiration date on her own opinion—that is, on how long the limited use of race in the college-admissions process would be permissible under the law. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” she wrote.
The nation is still a few years away from that deadline, and that quarter-century mark may have well been aspirational, if not illusory, as racism and structural inequalities, which undergird who does and who doesn’t get to go to college, are not artifacts of the past. Even so, Chief Justice John Roberts on Thursday achieved by judicial fiat a long sought-after goal of Republicans and social conservatives: a declaration that affirmative action policies as the US has known them for roughly a half century are forbidden by the Constitution’s guarantee of equality under the law—the very equal protection clause that took the Civil War to write into the law.
But a reader attempting to digest Roberts’s ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, a pair of long-running challenges to the admissions policies at Harvard and UNC, would be hard-pressed to find a single word in Roberts’s 40-page opinion acknowledging that he’s overruling precedents that have been with us since 1978. That year, in Regents of the University of California v. Bakke, the Supreme Court permitted the limited use of race for the purpose of achieving a diverse student body on campus—which the justices agreed was a compelling government interest that complied with the Equal Protection Clause of the 14th Amendment.
The goal of achieving diversity, widespread in corporate America and deemed a national-security imperative in the military, has been in the crosshairs of conservative legal activism as far back as the Reagan years. But the Supreme Court has reaffirmed it time and again. Roberts, joined by all five of his conservative colleagues—Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—doesn’t purport to discard it. He pretends to apply it in concluding that both Harvard and UNC cannot achieve diversity through their holistic reviews. As he sees it, “the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause.”
He adds: “Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.” (Disclosure: I edit a journal at an institute affiliated with Harvard Law School.)
Roberts stops short of declaring that the Constitution is, in fact, a color-blind document—one that must not, under any circumstances, take into account race, let alone the reality that race has been a driving force of much of American life and law since the country’s founding. But his majority opinion teems with his enduring belief that any and all consideration of race, no matter how circumscribed, is beyond the pale under the law. Deep down, he must know that he’s altering the status quo—much like the five justices to his right altered it when ending the constitutional right to abortion last year. The rules are different now, since Roberts notes that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
Roberts, in other words, puts it on students to discuss racial barriers they may face—and limits universities in what they may do with that information.
Justice Sonia Sotomayor, a proud child of affirmative action, authored the lead dissenting rebuttal to Roberts, and she saw right through this artifice. “It is a disturbing feature of today’s decision that the Court does not even attempt to make the extraordinary showing required by stare decisis,” she writes in a dissent that is rich in the history of the 14th Amendment. “The Court simply moves the goalposts, upsetting settled expectations and throwing admissions programs nationwide into turmoil.”
Even Thomas, who has long despised the affirmative action programs that gave him a leg up, notes that Roberts “rightly makes clear that Grutter,” which O’Connor authored 20 years ago, “is, for all intents and purposes, overruled.” Roberts never owns up to this. But Sotomayor doesn’t let him slide. She invokes the Dobbs ruling to suggest that, once again, the Supreme Court is charging ahead because its composition has changed. “At bottom, the six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law,” Sotomayor writes. She is also quite candid that the “three Justices of color on this Court” are where they are thanks to affirmative action.
She ends her dissent with a warning that the Supreme Court can’t put the genie back in the bottle. “Diversity is now a fundamental American value,” she writes, “housed in our varied and multicultural American community that only continues to grow. The pursuit of racial diversity will go on. Although the Court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education. “
Cristian Farias
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