SCOTUS majority ends affirmative action, another long-sought conservative goal

Roberts's 6-3 decision will change university admissions and, with it, America — but his opinion also highlighted the reactionary majority's weaknesses.

The U.S. Supreme Court on Thursday ruled on ideological lines that Harvard and UNC’s race-conscious admissions policies are unconstitutional, effectively ending the use of affirmative action in higher education.

Chief Justice John Roberts — while succeeding in reaching a long-sought goal, personally and for the conservative movement, that was clear since oral argument — did not formally, officially “end” affirmative action. That was, however, the effect of the ruling he wrote. He did not explicitly overturn the prior precedents allowing for race-conscious admissions policies within that ruling. He did, however, make them a nullity.

That tells us a lot.

Roberts was unwilling to say what the court was actually doing on Thursday, sending a secondary message beyond the decision itself: He knows the Supreme Court and its reactionary majority, beyond its numerical force, has weaknesses right now.

Those weaknesses will occasionally, if rarely, change outcomes. They will narrow some results or leave issues unresolved for potential future expansion. But, as with the Harvard and UNC cases, the weaknesses will sometimes lead the majority to obscure the blunt force — and extremism — of their decisions.

In his opinion for the 6-3 court¹, Roberts detailed four aspects of the admissions programs at issue that the court held rendered the admissions programs unconstitutional under the Equal Protection Clause.

At least one, if not multiple, of those factors would almost certainly be found to apply to any race-conscious admissions policy, and always would have. And so, while the majority never uses the word “overrule” — leaving that discussion to Justice Clarence Thomas’s solo concurrence and to the dissents of Justices Sonia Sotomayor and Ketanji Brown Jackson, for the two of them and Justice Elena Kagan — that is what Roberts’s opinion did in fact.

Throughout Roberts’s opinion for the court, he cites to 1978’s Bakke decision and 2003’s Grutter decision — the two earlier key cases establishing and refining the modern standards for the use of race in admissions policies — and then explains how the Harvard and UNC programs fail on each of these four tests that he has decided are what those tests meant.

By the end of Roberts’s decision, and while Roberts fastidiously avoids writing it, it is unmistakably clear that the Supreme Court has hollowed out the possibilities for universities to use race as a factor in their admissions process to create a diverse student body to the point that affirmative action is unquestionably gone.

The revisionist history at play throughout goes deep, and others with far more expertise than I have are writing up their pieces about that now. I just want to highlight one section of his opinion that shows how empty this reasoning is.

Race-conscious admissions policies must pass strict scrutiny — advancing a compelling state interest with a program narrowly tailored to that interest — and Roberts concluded that the schools “have fallen short of satisfying that burden.” Not only did Thursday’s majority conclude that the programs were not tailored closely enough to the schools’ stated interests, but Roberts also wrote that “the interests they view as compelling cannot be subjected to meaningful judicial review.”

This is nothing less than a statement, albeit indirect, that the entire line of cases and policies to follow since Bakke are — and always have been — invalid.

Of those, Roberts wrote, “Although these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny.”

In a paragraph that, in practice, overrules Bakke and Grutter, Roberts stated, “[T]he question whether a particular mix of minority students produces ‘engaged and productive citizens,’ sufficiently ‘enhance[s] appreciation, respect, and empathy,’ or effectively ‘train[s] future leaders’ is standardless. … The interests that respondents seek, though plainly worthy, are inescapably imponderable.”

Seeking a diverse student body is “inescapably imponderable,” according to Roberts, Thomas and the other Republican appointees who joined them: Justices Sam Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Under Roberts’s reasoning, then, race-conscious admissions policies have always been unconstitutional. Which, of course, is what he thinks, so this decision ultimately isn’t surprising. The only real surprising thing is that he was unwilling to say so.

The decision — as weakly as it was presented to the nation — will nonetheless have immediate and potentially dramatic effects.

As Harvard’s Maya Sen tweeted in the immediate aftermath of the decision, “Very little surprising here -- a policy decision made by 6 Republicans[.] I’m more interested in how colleges and universities (and eventually all sorts of employers) will respond[.]”

Those responses will inevitably lead to more litigation in the higher education context. As Moira Donegan noted, there is already a case pending challenging race-neutral policies.

What’s more, there are no immediate limits on the scope of Roberts’s decision. As The Washington Post reported, it also will inevitably lead to challenges of other policies outside of education and within the private sector.

Thursday, in other words, was just the beginning of a new era in how America addresses — or fails to address — race and the racial discrimination that has been ever-present throughout our history.

Despite Chief Justice John Roberts, despite the reactionary majority, and despite Thursday’s decision, the court and America will eventually, once again, be faced with the nation in which they are operating.

As Jackson wrote in dissent, “Our country has never been colorblind.“

1. The Harvard case was 6-2, because Justice Ketanji Brown Jackson recused herself from that case. The decisions were released together, however, with Jackson’s recusal from the one case noted within the opinion.