Looking forward to the Supreme Court’s radical next step.
Supreme Court Affirmative Action
It might appear straightforward to perceive the recent Supreme Court ruling that invalidated affirmative action programs at Harvard and UNC-Chapel Hill as the culmination of a lengthy journey.
Throughout successive Republican-appointed majority eras, the legality of employing race-based criteria for distributing state benefits has gradually eroded since the Reagan administration. Notably, John Roberts, a young attorney in Reagan’s White House, openly criticized state affirmative action measures using strong language, deeming them “highly objectionable.” As evidenced by Roberts’ recent opinion, what was once merely objectionable has now been deemed unconstitutional, solely due to the evolving composition of the court.
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While this week’s Supreme Court decision may seem like the concluding act of a conservative legal endeavor that began in the 1980s, it could also signify the commencement of a new chapter in the ongoing struggle over race in America. With a conservative majority on the Supreme Court, there is a potential for this ruling to serve as a stepping stone to undermine future efforts by the government and businesses to identify and address racial and ethnic disparities.
There are two significant ways in which this week’s decision could mark the beginning, rather than the end, of a chapter for the court. The first involves shifting the law in a noticeably more conservative direction. The second, if fully realized, could have far-reaching legal and political consequences comparable to, or even greater than, last year’s decision to overturn Roe v. Wade.
The first anticipated consequence following this week’s ruling is the potential invalidation of “disparate impact” rules. Disparate impact is based on a simple premise: individuals who act with discriminatory intent often do not openly display their racist motivations, or they may be negligent in perpetuating race-based disadvantages. Disparate impact laws allow plaintiffs to demonstrate discrimination by highlighting significant and unexplained racial disparities.
Conservative justices have targeted disparate impact for over a decade, and this week’s broader ruling against race-based college admissions provides them with a potent new tool. It is impossible to discuss “racially disparate impact” without acknowledging the role of race. Both state and federal laws contain crucial disparate impact provisions. For instance, the Department of Housing and Urban Development reinstated a disparate impact housing rule in March, which had been rescinded during the Trump administration. The primary federal employment statute includes language prohibiting disparate impacts, although its effectiveness is subject to debate. Illinois and California also have comprehensive laws that prohibit disparate impacts.
If all these provisions were disregarded, the legal landscape would become less favorable for individuals who experience discrimination from those who are cunning enough not to openly reveal their unlawful motivations. Judicially enforced colorblindness would consequently make it easier for people to act upon race-based motives. In essence, the Supreme Court’s embrace of colorblindness would facilitate discrimination by others, rendering Chief Justice Roberts’ seemingly straightforward but deeply misleading proposition that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race” void of substance.
Certainly, the conservative shift in the federal courts has already made it challenging for non-white discrimination plaintiffs to succeed. However, the potential second consequence could have even more extensive and disruptive implications.
Let’s consider a case in Virginia involving the admissions process of Thomas Jefferson High School for Science and Technology in Fairfax County, which has been progressing through the federal courts. The group suing the county school board argues that the school engaged in “impermissible racial balancing” by striving for an integrated student body without explicitly using race as a factor. According to this line of reasoning, a government action could be challenged not for explicitly mentioning race, but for intending to address a harm experienced by a specific racial group.
Admittedly, there are numerous technical reasons why the law doesn’t support this outcome. However, when the plaintiffs in the Thomas Jefferson case requested a stay on the admissions policy in April last year, three conservative justices—Samuel Alito, Clarence Thomas, and Neil Gorsuch—voted in favor of granting it, indicating existing support for this approach.
Taken broadly, a ruling that essentially rejects the pursuit of racial justice would have sweeping implications. It could cast doubt on many state and federal statutes enacted to address the disproportionate burdens faced by minority groups. For instance, laws that protect minority voters could be called into question, with a court hostile to minority voter rights scrutinizing these measures.
Moreover, there are numerous policy issues that disproportionately affect racial minorities, which would be hindered by a “no racial justice” rule. Consider the troubling racial disparity in maternal mortality rates, where Black women are five times more likely to die from childbirth-related bleeding than white women, as revealed by the National Institutes of Health in 2021. The recent tragic death of track star Tori Bowie is just one example. Such a rule against racial justice could seriously impede government efforts to respond to such distressing realities.
Admittedly, even if the court were to declare that the state cannot act to mitigate racially disparate harms, it could potentially avoid widespread consequences by arbitrarily limiting the scope of its rule. It could selectively determine when it perceives “integrative intent”—the aim of eliminating racial barriers in social and economic life. However, this would place state efforts to address racially concentrated harms at the mercy of the justices, which is hardly a preferable scenario.
Why would the court choose any of these paths? Traditional wisdom among political scientists suggests that the justices “follow the election returns.” In other words, due to the close ties between the justices and their political sponsors in one party or the other, the court generally aligns with broadly majoritarian views. However, this no longer appears to be the case, if it ever was. A recent poll conducted by the NORC Center for Public Affairs revealed that approximately 63 percent of Americans do not want the court to ban race-conscious affirmative action in higher education. Additionally, strong majority support for abortion rights did not influence the court’s decision last summer.
Instead, the Supreme Court now seems to align more closely with the preferences of the Republican Party. The radical destabilization of laws promoting equality serves partisan interests in two ways. First, measures like state voting rights acts are typically opposed by Republicans, so their elimination holds clear partisan significance. Second, an increasing faction within the party opposes what they label as “woke” politics.
If the court deems a vague category of race-conscious policies unconstitutional, it provides a legal framework for what has thus far been an amorphous term of political disparagement (even if some conservatives struggle to define “woke”). Consequently, the court incentivizes partisan figures to label policies they dislike as “social justice” or unconstitutional. When labeling something as “woke” is akin to deeming it “unconstitutional,” there will be a strong inclination to categorize any policy favoring minorities as