The second of the four major Supreme Court cases decided at the end of the 2022-23 term is Students for Fair Admissions v. Harvard. This is the case that was revisiting the question of whether “race” can be used as an affirmative factor in college admissions, which has been the law of the land for the last 45 years, ever since the 1978 decision in Regents of the University of California v. Bakke.
This time the court decided that affirmative action in college admissions is unconstitutional.
A little like last year’s Dobbs decision on abortion.
To get from here to there, the Court’s 6:3 majority essentially had to declare the United States to be a “post-racial” society and the United States Constitution to be entirely color blind.
Anybody who has their eyes open realizes that we are not a post-racial society.
But I digress.
As new justice Ketanji Brown Jackson wrote in her dissent,
With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life…It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, ahistorical, and counterproductive outcome. To impose this result in that Clause’s name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the Clause’s promise, is truly a tragedy for all of us.
It should be noted that Chief Justice Roberts, in his majority opinion, did leave the door open for “individualized” considerations of race. The Chief Justice said that students can “discuss” their own experience with race as part of the application process, as long as “that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”
So Universities should be prepared for a flood of essays in which minority applicants discuss their experiences with racism at a personal level.
Also, it should be noted that the court specifically did not decide whether race-based affirmative action can continue in U.S. military academies. As some commentators noted, the court seemed to implicitly acknowledge that diversity in the officer corps of the military is (surprise, surprise!) a good thing.
Ketanji Brown-Jackson vs. Clarence Thomas
The other thing that was notable in the opinion was the rather public sniping between Ketanji Brown Jackson and Clarence Thomas. Both of them (along with Sonia Sotomayor, who wrote the principal dissent) are clear beneficiaries of affirmative action. Thomas, the überhypocrite, said this about Brown-Jackson:
As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today. The panacea, she counsels, is to unquestioningly accede to the view of elite experts and reallocate society’s riches by racial means as necessary to ‘level the playing field,’ all as judged by racial metrics. I strongly disagree.
Well, okay then.
Justice Jackson’s race-infused world view falls flat at each step. Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything — good or bad — that happens in their lives. A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.
Well, okay then.
The other justices apparently perceived Thomas’ attack as sufficiently personal, that none of them joined in his concurring opinion.
Brown-Jackson was less personal in her response, but in footnote 103 she does make this observation:
Justice Thomas’s prolonged attack, ante, at 49–55 (concurring opinion), responds to a dissent I did not write in order to assail an admissions program that is not the one UNC has crafted. He does not dispute any historical or present fact about the origins and continued existence of race-based disparity (nor could he), yet is somehow persuaded that these realities have no bearing on a fair assessment of “individual achievement,” ante, at 51. 
Well, okay then.
The Court has come Full Circle
To look at it briefly, in 127 years the Court has traversed a kind of full circle:
- In Plessy v. Ferguson (1896) the court announced the “separate but equal” doctrine.
- In Brown v. Board of Education (1954) the court essentially introduced affirmative action as a kind of remedy for past discrimination.
- And now, in Students for Fair Admissions the court has declared the United States to be a post-racial society.
I guess that’s it. We can stop trying now.
- Please note that Brown-Jackson recused herself from consideration of the Harvard case, and her opinion only deals with the admissions policy at the University of North Carolina.