Precedents out of Context in the Harvard/UNC Affirmative Action Ruling

On the last page of his 58-page concurrence in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Justice Thomas writes: "The Court’s opinion rightly makes clear that Grutter [v. Bollinger] is, for all intents and purposes, overruled." Clear? Hardly. Certainly not explicit. The majority opinion by Chief Justice Roberts certainly does not expressly overrule Grutter or any of the Court's other affirmative action decisions. Indeed, Justice Kavanaugh, who, like Justice Thomas, signs onto the majority opinion in full, states that "the Court’s opinion today is consistent with and follows from the Court’s equal protection precedents," including those involving affirmative action.

Who's right? As a practical matter, Justice Thomas is. Today's decision ends race-based affirmative action in higher education (although there are loopholes that can and likely will be exploited). But Justice Kavanaugh captures the spirit of the majority opinion--reading the prior precedents tendentiously and selectively.

In places, the majority purports to apply Grutter. For example, the majority and Justice Kavanaugh in his concurrence make much of Justice O'Connor's statement that she expected race-based affirmative action to be no longer necessary in 25 years; but although reading that expectation as a rule of law would give the defendants until 2028, Chief Justice Roberts declares game over because the defendants represented that they did not think an arbitrary time limit was appropriate.

In numerous other places as well, the Court selectively applies prior precedents--especially those that preceded the 1978 case of Regents of Univ. of California v. Bakkewhich was the Court's first real foray into affirmative action. Pre-Bakke, the Court had not addressed on the merits the use of race to benefit members of traditionally disadvantaged racial groups. It was thus possible to read prior precedents as emphasizing one or the other of two consecutive sentences in the first Justice Harlan's dissent in Plessy v. Ferguson: "[1] There is no caste here. [2] Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Insofar as the first proposition contextualizes the second, statements about color-blindness must be understood as applicable where race is used as a means of supporting white supremacy but inapplicable to programs of affirmative action.

To be sure, the anti-caste reading of the Equal Protection Clause was never the only plausible one. Almost as soon as governments and private actors began, in the wake of the Civil Rights Movement, to address our centuries-long legacy of a racial caste system, white men (and some others) began to complain about reverse discrimination. And they could point, with some plausibility, to those earlier statements about color-blindness. But their claims were, at the very least, highly contestable. Color-blindness as a principle that invalidates programs that advantage members of traditionally disadvantaged racial groups--especially African Americans--was not established before Bakke. Indeed, given that Bakke and the cases like Grutter that built upon it did not employ the fatal-in-fact form of strict scrutiny that applies to racial classifications that subordinate racial minority groups, color-blindness was not established until this morning.

Yet the majority opinion in Students for Fair Admissions repeatedly quotes language from cases involving traditional subordination as though that language uncontroversially carries over into the affirmative action context. Consider a few examples:

As we recounted in striking down the State of Virginia’s ban on interracial marriage 13 years after Brown, the Fourteenth Amendment “proscri[bes] . . . all invidious racial discrimi- nations.” Loving v. Virginia  (1967). Our cases had thus “consistently denied the constitutionality of measures which restrict the rights of citizens on account of race.”

The Court emphasizes "all" without stopping to notice that the word "invidious" modifies "racial," which at least suggests the possibility that some racial classifications--those not redolent of white supremacy--might not be invidious. The same problem appears in this quotation from Loving:

The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.

Again, there's that pesky "invidious" that Chief Justice Roberts and the majority overlook.

Equally tendentious is how the Court uses Brown v. Board of Education. Where Chief Justice Roberts needs language that categorically denounces racial classifications, he leans on representations made by lawyers in the case, not by the Court itself. Here are some of the more choice quotations:

[The Constitution] should not permit any distinctions of law based on race or color . . . .

That's from a brief. Then there's this:

no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.

That's from the Brown oral argument transcript. And then there's this from Justice Thomas in his concurrence:

substantial evidence suggests that the Fourteenth Amendment was passed to “establis[h] the broad constitutional principle of full and complete equality of all persons under the law,” forbidding “all legal distinctions based on race or color.”

That's also from a brief in Brown.

Meanwhile, the Court and (even more so) Justice Thomas play fast and loose with the word "segregation," which they repeatedly invoke. The worst example is probably this calumny from the Roberts majority opinion:

Separate but equal is “inherently unequal,” said Brown (emphasis added). It depends, says the dissent.

As I've already noted, that kind of quoted phrase needs to be understood in the context of a case that challenged white supremacy. But there's another reason why it's at best ambivalent support for the Roberts view: de jure racial segregation has the purpose and effect of separating people based on race, placing people in different schools. Race-based affirmative action aims to integrate people of different races into the same schools. Whatever else one might say in response to the dissenters, it's grossly unfair to accuse them of approving--even partially--of separating people based on race.

Nothing I've said here is meant to imply that there aren't any good arguments for the policy view taken by the majority. I happen to think those arguments are ultimately unpersuasive, but I believe that reasonable people can disagree about the fairness of affirmative action to non-beneficiaries and its efficacy as a means of combating racial subordination. The key, however, is that those are policy arguments, not necessarily constitutional ones.

Justice Thomas goes on at length in his concurrence trying to establish that today's decision encapsulates the original understanding of the Fourteenth Amendment. Yet no one else joins him. Why not? It cannot be that his colleagues among the Court's conservative super-majority eschew his methodology. All of them signed onto his equally history-focused opinion in NYS Rifle & Pistol Ass'n v. Bruen. One is left to wonder whether Justice Thomas flies solo in his Students for Fair Admissions concurrence because this time he takes his law-office history a step too far--which is really saying something, given some of the dubious claims in Bruen.

In the end, then, the Court's reliance on out-of-context quotations and its pretense that it is not overruling its prior affirmative action decisions underscore the weakness of its distinctively constitutional arguments. That should not come as a surprise. Early in his tenure as Chief Justice, John Roberts demonstrated his preference for pithy statements over analysis in this area when he declared: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

In various settings, the Chief Justice has shown ideological flexibility this Term and in other recent Terms. When it comes to race, however, the Chief ain't evolving.