A Conservative Supermajority on the Supreme Court and its Impact on Affirmative Action
With the Supreme Court’s recent decision in Dobbs v. Jackson’s Women’s Health Organization (2022), where five Supreme Court justices voted to overturn the precedent set by Roe v. Wade (1973), the Court demonstrated a willingness to question, and even overturn, past precedent. Among the contentious cases for this term is Students for Fair Admissions v. President and Fellows of Harvard College, a case concerning affirmative action and discrimination in the college admissions process. Students for Fair Admissions will be the first affirmative action case the Court has decided since it largely upheld the use of race as a factor in college admissions decisions in 2016. However, the current makeup of the Court, of which three Trump-appointed justices have cemented a conservative supermajority, likely represents the end of the constitutionality of affirmative action, with Students for Fair Admissions being a key case in overturning past precedent.
The plaintiffs in Students for Fair Admissions allege that the consideration of race in admissions decisions at Harvard and the University of North Carolina impose an effective cap on the number of Asian American students admitted, therefore violating the prohibition of racial quotas established in the 2003 Supreme Court case Grutter v. Bolinger. In Grutter, the Court ruled that race-based affirmative action policies do not necessarily violate the equal protection clause of the Fourteenth Amendment. Applying the court’s previous decision in Regents of the University of California v Bakke (1978), the Court ruled that the diversity of a student body is a compelling state interest, meaning schools may enact affirmative action policies to ensure diversity. Importantly, the Court emphasized that the use of race must be “narrowly tailored,” meaning it can only be considered in the effort to increase diversity.
The narrowly tailored means by which race should be considered in admissions programs is disputed in Students for Fair Admissions. The plaintiffs make a twofold claim: that Grutter was incorrectly decided and should be overturned, and that even if Grutter isn’t overturned, Harvard’s and UNC’s affirmative action policies overstep Grutter’s “narrow tailoring” principle. The plaintiffs argue that these admissions practices go beyond just an effort to increase diversity at the school and actually limit the number of Asian American students admitted. They further alleged that Asian American students were routinely rated lower on personal, subjective evaluations when compared to white students.
The three liberal justices who are expected to sit on the bench when Students for Fair Admissions will be decided — Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — have expressed support for affirmative action policies. However, in her Senate confirmation hearing for the position of Supreme Court Justice, Justice Jackson stated she would recuse herself from the case on account of her position on Harvard’s Board of Overseers. Of the remaining justices, at least two are likely to support an effort to overturn Grutter. Justice Clarence Thomas, considered the most conservative justice on the Supreme Court, has been a vocal opponent of affirmative action. In his dissent in Fisher v. University of Texas (2016), Thomas stated that the Court should have gone so far as to deem all affirmative action illegal, expressing his desire to “overrule Grutter.” He claimed that “[t]he Constitution abhors classifications based on race.” Justice Samuel Alito, while not as staunchly opposed to affirmative action as Justice Thomas, has authored dissenting opinions attempting to significantly limit affirmative action’s scope. While not explicitly indicating his stance on overturning Grutter, Justice Alito would likely be sympathetic to an effort to change the precedent surrounding the issue. The remaining justices, being the conservative justices appointed by President Trump, fall somewhere between these two ends. Given their conservative leanings, it is likely they would be sympathetic to a ruling against Harvard, but the lack of writing on the subject leaves the question open. However, during oral arguments, Justices Barrett and Kavanaugh both appeared to support an option besides overturning or fully maintaining Grutter: the concept of a 2028 ban on affirmative action. This ban refers to an argument made by Justice Sandra Day O’Connor in her 2003 opinion in Grutter, in which she set a 25 year timeframe for how long affirmative action should last, allowing current Justices to vote for a future end to affirmative action as opposed to a wholesale overturning.
This option also appears a likely decision for Chief Justice Roberts, a swing vote in this case. In a case concerning the involvement of race as a factor in school placement within a district, Parents Involved in Community Schools v. Seattle School Dist. (2007), Chief Justice Roberts said “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” demonstrating an ideological opposition to affirmative action. In the recent oral arguments concerning Students for Fair Admission, Chief Justice Roberts maintained this position, asking questions critical of race-based affirmative action’s efficacy at its intended goal of increasing diversity. In his concurrence in the recent case of Dobbs v. Jackson Women's Health Organization, Roberts maintained his trend of judicial restraint, arguing for a limiting of abortion rights while coming short of a full overturning of Roe, a trend he would likely continue by siding with the moderate conservative bloc in the decision concerning the 2028 affirmative action ban.
Given this split, the conservative bloc on the Court is likely united in a ruling for the plaintiff, but divided on the specifics of that ruling. With the five Justices who would likely vote to maintain the 2028 ban, this appears as the most likely final decision for the Court, where Grutter remains as precedent until the end date designated by Justice O’Connor’s Grutter opinion.
However, Students for Fair Admissions may have impacts beyond just the question of affirmative action. This case, as well as the recent Dobbs decision, represent a growing trend of conservative advocacy groups using the newly conservative court to push policy goals, a trend that will only be strengthened by Justice Thomas’ stated willingness to “reconsider all of this Court’s substantive due process precedents including Griswold [v. Connecticut], Lawrence [v. Texas], and Obergefell [v. Hodges] ” in his Dobbs concurrence.
Edited by Anna Reis