01 November 22
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What was perhaps most remarkable in these largely predictable arguments was how much time the conservative justices devoted to pure policy arguments. These justices dislike affirmative action for a whole lot of deep emotional reasons that, it turns out, have nothing to do with the Constitution. They barely even considered the meaning of the 14th Amendment until Justice Elena Kagan finally brought it to their attention two and a half hours into the UNC arguments. Kagan, along with Justices Ketanji Brown Jackson and Sonia Sotomayor, was vastly more interested in the history of the Constitution’s equal protection clause than their ostensibly originalist colleagues. If and when the supermajority does eradicate race-conscious admissions, everyone will be able to weigh the strength of their arguments. But no one should pretend the decision was remotely rooted in actual law.
The history of affirmative action at the Supreme Court is not particularly complicated. In 1978’s Bakke decision, a majority found that universities could consider race to build a diverse student body, identifying educational benefits that flow from diversity. At the same time, a majority prohibited quotas and other rigid metrics that reduced applicants to their race, requiring universities to undertake a holistic review of each applicant. The Supreme Court affirmed this principle in 2003’s Grutter v. Bollinger and again in 2016’s Fisher v. Texas.
Although these cases involve both public and private institutions, the Supreme Court has consistently held that federal law simply applies the equal protection clause to private universities that receive federal funds. So, in theory, the justices should’ve been debating the meaning of the Constitution. Instead, the conservative justices continually reverted to free-floating policy discussions about how affirmative action makes them feel. (Hint: They feel bad.)
Justice Samuel Alito took a wholly gratuitous potshot at Sen. Elizabeth Warren, asking whether someone counts as a racial minority if their “family lore” claims American Indian heritage. Justice Clarence Thomas asserted that affirmative action is indistinguishable from Jim Crow and argued that “diversity” itself is an empty, meaningless concept. “I don’t have a clue what it means,” Thomas said. When North Carolina Solicitor General Ryan Park explained that students benefit from having classmates with different backgrounds and viewpoints, offering peer-reviewed research on the topic, the justice retorted: “I don’t put much stock in that because I’ve heard similar arguments in favor of segregation, too”—as though Southern states had once defended Jim Crow as necessary to expose students to the lived experiences of their classmates.
Justice Neil Gorsuch took the position that affirmative action is indistinguishable from anti-Jewish discrimination, obsessively noting that “holistic admissions” stemmed from “the 1920s at Harvard,” when “they were used as cover for quotas for Jewish persons.” Given that the vast majority of universities use a holistic approach in admissions today, Gorsuch appears to think that the entire higher education system is fruit of the one antisemitic tree. The justice also remarked, over and over again, that students who play fancy sports get a leg up in admissions. (He especially appears to hate squash players.) That’s true, but irrelevant to the legal analysis; then again, maybe Gorsuch thinks all his grievances automatically gain constitutional stature.
Threaded throughout the arguments were the plaintiffs’ persistent claims that a mere “consciousness of race” itself keeps us from moving past race. Apparently, without even knowing it had happened, the United States has moved past racism and race. Give yourselves a pat on the back, Americans. As Kagan summarized the plaintiffs’ position: “It just doesn’t matter if our institutions look like America.”
In this framing, Brown v. Board of Education was a good decision not because it helped Black children obtain an equal education, but because it freed Black and white students equally from the tyranny of racial classifications. And, going back further, the 14th Amendment was not a breakthrough because it granted Black Americans equal citizenship, but because it made race irrelevant to the government. As Sotomayor and Jackson reminded their colleagues, this argument is ahistorical nonsense: The 14th Amendment was a color-conscious effort to give Black Americans all the rights and privileges enjoyed by white Americans. Even Justice Amy Coney Barrett, a self-proclaimed originalist, didn’t seriously try to contest this fact.
Instead, Barrett seized upon Justice Sandra Day O’Connor’s famous prediction in Grutter that affirmative action would no longer be necessary in 2028, based on her own inchoate sense that racial progress was marching apace. Barrett framed O’Connor’s wish-casting as though it were the critical factor in these cases. She characterized O’Connor’s language as a “self-destruct mechanism” that expires in 2028, but also—in the view of the court’s conservatives—has already run out today. When defenders of affirmative action protested that this prediction was mere optimism, Justice Brett Kavanaugh suggested that, in fact, it was a proper holding that bound the court. Why? Because Thomas called it that … in his Grutter dissent. Kavanaugh and Barrett also suggested that the much-mocked 2028 deadline cannot be extended unless its proponents set a new date by which race-conscious admissions would no longer be necessary. (Siri, set the timer for racial harmony.)
It’s a bit odd that these justices fixated on O’Connor’s prediction when they obviously won’t allow affirmative action to survive, even until her sell-by date of 2028. Its bell will toll later this term, when six justices kill it because they find it personally offensive. At that point, universities will likely begin to experiment with various alternatives to affirmative action, like “top 10 percent plans” that ensure top students from every high school get into a state university. In truth, these plans are not race-neutral, because they’re designed to help minority students at segregated high schools get into good colleges. But the court has long pretended as if they are race-blind, and they may be the best anyone can hope for after the court kills off traditional affirmative action. Then again, Thomas, Alito, and Gorsuch indicated in April that they think top 10 percent plans are also unconstitutional. So, as usual, this entire area of law will be defined by what Barrett, Kavanaugh, and Chief Justice John Roberts personally view as reasonable.
Roberts, who famously told us that the way to get past structural and historic racism is to just “stop” thinking about it, was in rare form on Monday. He threw rabbit punches at Seth Waxman, who represented Harvard, to the point where it began to look strangely personal. At the lowest moment of the argument, Roberts tried to get Waxman to defend Harvard’s alleged (and unproven) racism, and Waxman furiously declined to do so: “Are you asking me whether Harvard is—you’re asking me to answer a question that assumes that Harvard is discriminating on the basis of race? No, I can’t accept that.” Roberts testily replied: “Isn’t that what the case is about, the discrimination against Asian Americans?”
At another point, the chief justice castigated Waxman for implying that students of different races would have different viewpoints, dismissing the notion as a “stereotype.”
“That was a question,” he sniped, before Waxman even had a moment to respond. Whatever this was, it did not look like a neutral assessment of abstract constitutional principle.
What changed between Grutter and today? Racial discrimination in housing, education, and many other aspects of American life persists—no matter how badly the conservative justices wish to believe these problems have vaporized, gone, worked themselves out. University admissions are still wildly competitive, and underrepresented racial minorities remain at a distinct disadvantage. The most meaningful shift has been in the personnel of the Supreme Court, but it would be a mistake to chalk up Grutter’s demise to a mere change in ideology. The current majority’s grudge runs deeper; it believes that any time a person of color takes a “spot” that purportedly belonged to a white person, there is grievous emotional and dignitary injury afoot that must be stopped. It hurts white people, and it evidently hurts the justices’ own feelings, too. The minor fact that they have no constitutional justification to stop it will not get in their way.
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