Think Affirmative Action Is Dead? Think Again.
Oct. 26, 2022
By Justin
Driver
Mr. Driver is a professor at Yale Law School, and the author
of “The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle
for the American Mind.”
On Oct. 31, only
hours before millions of children get dressed up for trick-or-treating, nine
Supreme Court justices will don their robes to hear oral arguments about the future
of affirmative action. The dominant, almost universal expectation is
that the court will eliminate race-conscious admissions in June, at the end of
this term.
After the court
agreed to hear the cases challenging Harvard and the University of North
Carolina, CNN spoke for many in declaring affirmative
action “the legal equivalent of a dead man walking.” This current admissions
cycle may be the last that universities can consider an applicant’s race to
foster diversity. A decision banning affirmative action would be catastrophic for the presence of marginalized
racial groups on the nation’s leading campuses. The very constitution of higher
education in America, thus, hangs in the balance.
Fortunately, reports
of affirmative action’s demise have been greatly exaggerated. Several plausible
reasons suggest that the Supreme Court may not kill affirmative action — at
least not with such alacrity. Even if most of the justices wish to end affirmative
action, authoritative legal considerations may nevertheless compel the court to
issue a decision permitting it to exist until June 2028. Given that the Harvard
and UNC cases will almost certainly not be resolved until next summer, this
approach would provide universities with a five-year reprieve before they
adjust to a post-affirmative action world.
Liberal
concerns for affirmative action’s future are not, of course, wholly unfounded.
Although the court upheld the
policy by a single vote in a University of Texas’s case in 2016, the court has
since grown markedly more conservative. President Donald Trump’s three
appointed justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — are
all presumed to view affirmative action skeptically.
Moreover, while
several decisions stretching back to the 1970s have permitted affirmative
action, the court’s repudiation of
Roe v. Wade (1973) four months ago could signal that the days of heeding
precedent have passed. Making matters worse, Chief Justice John Roberts — the
G.O.P.-appointed jurist most likely to join his liberal colleagues in landmark
cases — has repeatedly denounced race-conscious
actions. In 2007 he condemned school districts’ attempts to promote
integration, declaring, “The way
to stop discrimination on the basis of race is to stop discriminating on the
basis of race.”
So why would the
Supreme Court extend affirmative action by five years if a majority is
committed to colorblindness? The court validated affirmative action in a foundational
decision, Grutter v. Bollinger (2003), which involved the University of
Michigan Law School. Justice Sandra Day O’Connor, writing for the court,
emphasized racial diversity’s importance in elite academic environments.
Nevertheless, she
also stated that “race-conscious admissions policies must be limited in time.”
Toward the opinion’s end, she noted that 25 years had elapsed since Justice
Lewis Powell provided the decisive fifth vote to uphold affirmative action in
Regents of the University of California v. Bakke in 1978. Then, in Grutter’s
most arresting feature, she concluded, “We expect that 25 years from now, the use
of racial preferences will no longer be necessary.”
It may be tempting to
dismiss Grutter’s quarter-century horizon as mere loose talk. After all, sunset
provisions are fundamentally the province of the legislature, not the
judiciary. On this account, it seems absurd to view Grutter’s 2028 expiration
date as meaningful, let alone as cognizable legal authority.
Upon
reflection, though, Grutter’s time frame is not something that can be
haphazardly disregarded. When Grutter initially announced that the sun would
set on affirmative action 25 years hence, the policy’s supporters excoriated
that timeline as woefully aggressive and naïve; today, however, that
once-reviled statement has improbably become the last best hope to extend
affirmative action beyond the coming year.
Justice O’Connor,
according to Evan Thomas’s biography, did not dream up Grutter’s sunset
provision at the 11th hour. Instead, she had been contemplating how to impose a
temporal limitation on affirmative action for several years. In 1996, well
before Grutter, she received an honorary degree from the University of
Michigan. There she went on a law school tour guided by Kent Syverud, a former
law clerk of hers who was then a Michigan professor. As they stood chatting in
the law school’s basement, she expressed unease with affirmative action, but
she also suggested that it might be permissible as a transitional instrument.
“When is long enough?” she asked rhetorically. “How do we get to that point?”
More important than
its origins, though, the justices have repeatedly treated the 25-year sunset as
legally significant. Justice Anthony Kennedy’s dissent in Grutter quipped that the decision could
be understood as containing “its own self-destruct mechanism,” suggesting that
he viewed Grutter as preserving affirmative action until 2028.
Relatedly, Justice
Clarence Thomas’s Grutter opinion — joined by Justice Antonin Scalia —
dissented from the majority’s validation of affirmative action but concurred
that the policy would be unconstitutional in a quarter-century. “We must wait
another 25 years to see this principle of equality vindicated,” Justice
Thomas wrote, referring to
colorblind admissions. Admittedly, Thomas
detests affirmative action with perhaps greater ferocity than any of his
colleagues and clearly wishes the policy died long ago. He doubtless sought to
ensure that affirmative action would end no later than 2028 and to stymie
attempts to construe Grutter’s time frame as merely aspirational.
But even if Justices
Kennedy and Thomas expressed their views in frustration, they are still
persuasive in construing Grutter’s timeline as determinative. If Grutter did
not intend to provide affirmative action a safe harbor, after all, it would not
have articulated the 25-year window.
Following Grutter,
justices from across the ideological spectrum have repeatedly invoked the
quarter-century sunset. In 2012, during oral argument for the first challenge
to the University of Texas’ admissions program, Justice Stephen Breyer stated unequivocally:
“Grutter said it would be good law for at least 25 years. And I know that time
flies, but I think only nine of those years have passed.”
Justice Scalia picked
up this theme as he urged the university’s counsel to admit that after 16 more
years, affirmative action would no longer pass constitutional muster. When the
attorney sought to recast Grutter’s timeline as flexible, Justice Scalia would
have none of it: “But you’re appealing to Grutter, and that’s what it said.” In
2015, when Texas’s admissions program returned to the court, Justice Scalia and
Chief Justice Roberts referred to the 2028 expiration date during oral
argument. Although both justices aimed to reveal that Texas had no intention of
dropping its defense of affirmative action when the designated time arrived,
they also made clear that Grutter’s deadline held significance.
The
Supreme Court brief filed on behalf of Students for Fair Admissions, the group
contesting Harvard’s and U.N.C.’s admissions policies, candidly accepts the
legal force of Grutter’s timeline. The brief strikingly refers to “Grutter’s
25-year grace period.” The brief follows the lead of not only various justices
but also several prominent scholars, journalists and appellate judges — all of
whom have understood Grutter’s expiration date as binding.
Given that the
court’s three liberals — Justices Ketanji Brown Jackson, Elena Kagan and Sonia
Sotomayor — almost certainly will support affirmative action, at least two
Republican-appointed justices would need to accept Grutter’s timeline for the
policy to remain valid. (Yes, Jackson has recused herself from the Harvard
case, but a 4-4 deadlock would keep the policy in place.) The three most likely
candidates are, in my view, Justices Kavanaugh and Barrett and — against all
odds — Chief Justice Roberts.
Justice Kavanaugh has
demonstrated a deep commitment to racial diversity in law clerk hiring. Over
the years, he has met with various Black
law student associations to encourage members to apply for clerkships. He
has stated that he
has “been very aggressive about trying to break down barriers” in clerk hiring
and expressed skepticism about “the old networks that prevented women and
African Americans and minorities from getting law clerkships.”
He has walked the
walk, too, compiling an impressive record of hiring clerks of color, first on
the D.C. Circuit and now on the Supreme Court. It would be mistaken, of course,
to assume that he adjusted his standards to hire racially diverse clerks. But
it does stand to reason that he — far more than a garden-variety Federalist
Society jurist — appreciates the importance of racial diversity within the
corridors of power.
Justice Barrett may
also be less reflexively hostile to affirmative action than is widely assumed.
Is it at least possible that her experience adopting and raising two Black
children has made her more intimately attuned to the ugly persistence of racial
discrimination than some of her colleagues? Although this notion may initially
sound reductive, sophisticated empirical scholarship has demonstrated that
judges who have daughters are more receptive to women’s rights claims than
judges who have only sons. It would hardly be astonishing if a similar, perhaps
subconscious, dynamic applied to jurists with Black children and claims of
racial justice. In fact, Prof. Maya Sen, one of the authors of the study on judges and their
children, said in an interview that adopting a child may affect a
jurist’s worldview.
The case for Chief
Justice Roberts, in contrast, hinges on his commitments to institutionalism and
incrementalism. His veneration of stare decisis counsels against brazenly
overturning Grutter at once, when he could write an opinion finding that the
decision will — on its own terms — expire in five years. This method would
allow him to maintain with some force that he has come not to bury Grutter but
to praise it.
“Stare decisis” means
to “stand by things decided,” and is essential to law’s preference for
predictability. At his confirmation hearing in 2005, Chief Justice Roberts repeatedly
waxed eloquent about stare decisis. “It is a jolt to the legal system when you
overrule a precedent,” he said. “Precedent
plays an important role in promoting stability and evenhandedness.” His
judicial self-conception is inextricably connected to these virtues, as he
views himself as placing a steady hand on the tiller, not slamming the pedal to
the metal.
Chief
Justice Roberts’s respect for stare decisis is not hollow rhetoric. This year,
he chided his
colleagues for “overruling Roe all the way down to the studs” in Dobbs v.
Jackson Women’s Health Organization. That was not an isolated instance. In 2020
he provided the critical fifth vote to invalidate a Louisiana law limiting
abortion access. He did so even though in 2016 he voted, in dissent, to uphold
a virtually identical Texas statute.
Yes, Chief Justice
Roberts modified the underlying precedents in both Dobbs and the Louisiana case.
But his incrementalism
leads him to recoil from decisions that send the court lurching because new
justices have arrived. No respectable legal doctrine asserts, “There’s a new
sheriff in town.”
Most alarming for
liberals, though, is that colorblind constitutionalism forms a central part of
Chief Justice Roberts’s judicial project. His opinion for the court in Shelby
County v. Holder (2013), which dismantled a key provision of the Voting Rights
Act, bolsters this claim. But some aspects of that decision suggest he may be
unwilling to rebuke Grutter’s sunset provision.
Importantly, Shelby
County did not arrive as a bolt from the blue. He issued an opinion for the court in 2009
encouraging Congress to revise the act’s contested provision. Only four years
later did he deem the measure unconstitutional. In addition, Shelby County did
not wage a frontal assault on congressional authority to redress racial
discrimination in voting. That opinion took the more indirect approach of
finding that Congress’s solution was untethered to modern problems.
Make no mistake:
Chief Justice Roberts’s indirect method gutted the act all the same. But the
approach in Shelby County suggests that he prefers to reach his destination
while minimizing confrontation, and is open to taking the scenic route. Shelby
County thus strongly resembles the arguments favoring five more years —
but only five more years
— of affirmative action.
This focus on timing
in the judicial context may seem strange. But temporal considerations have
hovered over affirmative action since the very beginning. In 1977, as the court
considered Bakke, McGeorge Bundy wrote a cover
story for The Atlantic, in which he observed: “Some of those who defend
affirmative action sometimes speak as if it could be a relatively short matter.
If we measure in generations, they may be right.”
Inside the Supreme
Court, the nation’s pre-eminent legal advocate of civil rights — Justice
Thurgood Marshall — agreed that affirmative action would be required for
generations. When the justices gathered in conference to consider Bakke, the
question of duration arose, and he contended that the policy would be needed
for 100 years. At this, Justice Powell blanched, deeming it an unfathomably
long period.
Do
not be shocked if the Roberts court announces next June that it will, in
effect, split the difference between Justices Marshall and Powell, permitting
affirmative action to reach the five-decade mark. Time will tell.