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What changed? Nothing but the composition of the court. The Students for Fair Admissions cases are the first affirmative-action cases where the justices’ votes broke strictly along party lines. Every justice appointed by a Republican president voted against the universities, and every Justice appointed by a Democratic president voting in their favor. It is hard not to think that the justices were voting their political preferences, and the result is a precedent-overturning opinion that cannot withstand strict, or even not-so-strict, scrutiny.
Chief Justice John G. Roberts Jr., writing for the majority, distorts history and assumes facts. Bowing to originalism, Roberts argues that the 14th Amendment was intended from the start to be race neutral, and he found a few quotations that support this view. But he barely confronts Justice Sonia M. Sotomayor’s more-accurate history. She points out that the Freedmen’s Bureau Act of 1865 (and extended in 1866) and the Civil Rights Act of 1866 took race into account to advantage Black people, that each was vetoed by President Andrew Johnson because they gave Blacks advantages denied to whites, and that each was then passed over Johnson’s veto. The U.S. Congress that passed these laws also advanced the 14th Amendment, and it has been argued that one reason for the amendment was to ensure that the Civil Rights Act would pass constitutional muster.
Roberts also rewrites the history of the school-desegregation case Brown v. Board of Education, to suggest that its goal was to ensure colorblindness rather than to destroy a keystone of oppressive apartheid.
Roberts has several contemporary quarrels with affirmative action, beginning with a belief that its aims are insufficiently measurable to permit judicial review. Among his examples of measurement-defying outcomes are the production of future leaders and the acquisition of new knowledge based on diverse outlooks. Yet if asked to do so, universities could document the leadership accomplishments of their affirmative-action graduates, and they could point to courses and research creating new knowledge that owe their genesis to the interests of minority students. But the majority in this case prefer to assume rather than find facts.
Because admissions slots are limited, Roberts believes, the admissions advantage that minority applicants gain from affirmative action invidiously discriminates against nonminorities. This misses a key distinction between discrimination against and discrimination for, a surprising miss given that Roberts also quotes an opinion saying that race is treated as a forbidden classification because “it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” Yet affirmative action-eligible applicants are not admitted unless their applications show substantial merit, and those losing out are no more demeaned than they would be if the place they might have had were taken by a less academically able legacy candidate, which is to say, not at all.
Roberts’s other major quarrel with affirmative action is that he thinks racial preferences stereotype minority applicants by assuming that their race means they think alike. Roberts is wrong. Admissions officers know students of the same race differ in their views, but they also know that the mix of views within a group of minority students will differ, perhaps substantially, from the mix of views within similarly sized groups of white students.
In commenting on the futility of pre-Brown cases that sought to ensure that separate would in fact be equal, Roberts writes, “the inherent folly of that approach — of trying to derive equality from inequality — soon became apparent.” Yet this is what Roberts and those voting with him are doing. They seem to think that by outlawing affirmative action, they can create racial equality in a world where racial inequality is the rule rather than the exception. It can’t be done.
