Conservative court revolution claims another victim

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Affirmative action died Thursday at the hands of the Supreme Court's conservative constitutional revolution. In a 6-3 decision, written by Chief Justice John Roberts, the court overturned nearly 50 years of precedent and held that it's unconstitutional for universities to take account of racial diversity in their admissions.

The opinion eviscerated the diversity arguments that have become central to many universities' self-conception over the last few decades. Roberts wrote that the goals of diversity were too diffuse and nonspecific to be measured; that since admissions are zero-sum, giving help to students of some races necessarily hurts those of others; and that there was no end in sight to programs that the Supreme Court warned 20 years ago needed an eventual sunset.

More fundamentally, Roberts articulated a theory of equal protection that conservatives have been advocating almost since affirmative action began: that it is effectively always wrong to treat people differently based on race, no matter why. It doesn't matter whether the objective is to help rectify past injustice or foster more social mobility. Under this so-called "colorblind" theory of the Constitution, the 14th Amendment, drafted and ratified to protect formerly enslaved African Americans, can be used to block descendants of those freed people from attaining social equality.

The origin of the precedent that the Roberts court overturned was a solo opinion by Justice Lewis Powell in the 1978 case, Regents of University of California v. Bakke. In it, Powell basically rejected affirmative action in university admissions as a mechanism to right past wrongs. But Powell embraced the view, advanced by Harvard University in a friend-of-the-court brief, that it was appropriate to take account of race as part of the overall effort to create a diverse student body. Harvard argued that such diversity would enhance the educational experience of all students — and by implication, that admitting to Harvard a broad cross-section of students would create a more diverse elite.

The Bakke precedent was subsequently reaffirmed and embraced by a majority of the court two separate times: once in 2003, when Justice Sandra Day O'Connor adopted a version of it, and again in 2013, when Justice Anthony Kennedy wrote the majority opinion allowing it as part of a "holistic" admissions process.

Roberts in theory likes to follow precedent. So he made sure to point out that, in her 2003 opinion, O'Connor had written that affirmative action should be over in 25 years — 20 of which have now elapsed.

But Roberts wasn't really following O'Connor's logic, which strongly hinted that she believed it was untenable for the U.S., which gets so much of its elite from graduates of selective universities, to have elite institutions without significant numbers of Black and Latino students. O'Connor was influenced by briefs from corporate America and the U.S. military that echoed the concern of insufficient racial diversity in national leadership. Roberts mostly doesn't seem to care about this concern. (Although in a footnote, Roberts's opinion excluded the U.S. military academies from the decision, implying possible recognition of the need for racial diversity in the officer corps and inviting a new lawsuit on the subject.)

Roberts, instead, is following the approach of Chief Justice William Rehnquist, an inveterate foe of affirmative action; and of Justice Antonin Scalia, who frequently emphasized the importance of applying the colorblind Constitution theory to block affirmative action. As Roberts put it, "racial discrimination is invidious in all contexts."

What is left of race-based distinctions after Roberts's opinion? The chief justice wrote that the government can only use them temporarily to prevent immediate harm; to remedy workplace discrimination for people who were themselves injured by discrimination; and in schools to produce distribution of students "comparable to what it would have been in the absence of constitutional violations." These are all extremely narrow. They effectively mean that the era of affirmative action in admissions is over. And they signal that affirmative action will also be treated as unconstitutional or unlawful in nearly all workplace and other educational contexts.

A new fight over university admissions is inevitable. Roberts ended his opinion by stating that universities may still consider how an applicant's race "affected his or her life, be it through discrimination, inspiration or otherwise." He added that "a benefit to a student who overcame racial discrimination — must be tied to that student's courage and determination." So race can still be taken into account individually, though not systematically.

Roberts went out of his way to refute the possibility, hinted at in Justice Sonia Sotomayor's dissent, that universities could now still consider race on an individualized basis. "Universities may not simply establish through application essays or other means the regime we hold unlawful today." He added acidly that "a dissenting opinion is generally not the best source of legal advice on how to comply with a majority opinion."

For her part, Sotomayor called Roberts's willingness to allow race to be considered as part of an individual's experience "lipstick on a pig."

There's plenty more to be said about the details of the opinions in this case, including Justice Clarence Thomas's harsh treatment of Justice Ketanji Brown Jackson's dissent — the first time two African American justices have fought about race in the same Supreme Court case.

There's also the bigger historical question of whether this decision will eventually be read as the grand statement of racial justice that the conservatives, including Thomas (who wrote a separate concurrence) and Justices Neil Gorsuch and Brett Kavanaugh (who also did) clearly wanted it to be.

For now, however, the key point is that the conservative justices believe they have brought an end to lawful affirmative action based on race.

Another decadeslong conservative goal has been met — and decades of precedent overturned.

Noah Feldman is a professor of law at Harvard University an author, most recently, of "The Broken Constitution: Lincoln, Slavery and the Refounding of America."