Years ago, many years ago, United States Supreme Court decisions seemed more accessible, and readable. It was almost as if the Court was writing for the general public, trying to cast the law’s sweeping generalities and far-reaching consequences in terms the general public could understand. Now the Justices seem to write for one another, and for legal academics. That’s a loss to the public at large.
Weighing in at almost 230 pages, the various opinions in the Supreme Court’s recent affirmative action decision involving Harvard University and the University of North Carolina reflect contrasting visions of what the law can and should do in American life. But few people will have the time or inclination to read all the decisions. And we are poorer for it. (The case’s caption, its title, is Students for Fair Admissions, Inc. v. Presidents and Fellows of Harvard College. You can find it by searching the Supreme Court web page and looking for the section on “Opinion”, See SCOTUS.)
Here’s a hot take on what the case does and does not say, and why it is important.
The Court struck down the college’s use of race in determining whether a student should be admitted to college, saying that the use of race is contrary to the requirement that all people be treated equally before the law. It expressly adopted a “color-blind” view of the Fourteenth Amendment’s requirement of equal protection of the law. Chief Justice John Roberts wrote the majority opinion. It was followed by concurring opinions, that is opinions by Justice’s agreeing with Robert’s conclusions but offering differing reasons for supporting it. Justice’s Thomas, Gorsuch and Kavanaugh wrote separate concurring opinions.
Justices Sotomayor and Jackson wrote separate dissents, disagreeing with the majority. Justice Kagan joined the dissenters.
The decision rehearses arguments that are the despair of law students everywhere. When the Constitution says the no one shall be deprived of equal protection of the law, what does that mean, when it comes to race? Evaluating such questions becomes a question of applying a standard, or lens, through which to view the issue. When it comes to race, the Court applies what is called “strict scrutiny:” to justify something that looks like unequal treatment, a law must identify a compelling state interest, and adopt the narrowest means of achieving it. Common sense, it seems, isn’t the standard.
What’s the goal of affirmative action? A diverse educational experience. Is that compelling? The decisions disagree. But even if the interest is compelling, does the use of race as a deciding factor in an admission decision serve as the narrowest means of achieving it?
In the Harvard and UNC cases, the majority said the compelling interest is so vague as to be meaningless, and the means used to achieve it are far too broad, and far too long-lasting. Racial classifications applied in perpetuity foster division, not equality. It is a long-winded way of saying you don’t treat people as equals by treating them as historical tokens that need to be reckoned and scored by standards having little to do with them or their merits.
The Court did not strike down affirmative action for all time. The decision serves as an invitation to revisit it.
Justice’s Sotomayor’s and Jackson’s decisions should be must-reading for every American. They write separately that racism isn’t just a stain on the nation’s past, it is a shadow cast over the lives we all live today. Sotomayor writes that the notion of a color-blind Constitution isn’t just wrong, it is dangerous. Justice Jackson recites data and studies that show the vast inequalities ietween the races in American life. Justice Jackson is already sold on the notion of race-based transfer payments, also known as reparations. Her opinion is the opening salvo in the litigation to come on this topic.
The Harvard and UNC decision is not the end of affirmative action. It will stand as the Roe v. Wade for those who view “racial justice” as the critical issue of our time. Expect new rounds of litigation to challenge race-based preferences, and to defend them, in Courts throughout the land.
It is well worth the time, for lawyers and laymen alike, to read this decision -- all of it. Non-lawyers can skip the discussion of strict scrutiny and legal standards, and wish for a transparent Constitution accessible to all. Justices Thomas’s and Jackson’s opinions present the case for and against affirmative action in concise and meaningful terms.
As for lawyers, I suggest a reading that focuses on the use of the cumbersome architecture of “strict scrutiny.” Do we really need such arbitrary doctrinal devices? The distinctions between strict scrutiny, heightened scrutiny and rational basis review of are clunky, inelegant and, perhaps, an affront to a Constitution that was supposed to establish limited government.
