Opinion: The conservative project to kill affirmative action was decades in the making

Editor’s Note: Michael Gerhardt is the Burton Craige Distinguished Professor of Jurisprudence at the University of North Carolina School of Law. He is the author of several books, including “The Power of Precedent.” The views expressed here are his own. Read more opinion on CNN.

Nearly 45 years to the day after the Supreme Court first upheld the constitutionality of the use of race as a possible positive factor in graduate school admissions, the Supreme Court declared the practice unconstitutional at both private and public colleges and universities.

The vote in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College on lined up almost identically to the Supreme Court’s 6-3 decision a year ago, overturning federal protection for abortion rights. The only differences were Chief Justice John Roberts, who—though he wrote his own concurrence in the abortion case, did not join in striking down Roe—wrote Thursday’s majority opinion on affirmative action, and Justice Ketanji Brown Jackson. She participated only in the parts of the case addressing the constitutionality of the admissions policy at the University of North Carolina but not her undergraduate alma mater, Harvard College, where she was a member of the Board of Overseers.

Neither the decision nor the vote surprised anyone. For nearly five decades, affirmative action in university admissions has been as much of a target as Roe v. Wade  was.

Beginning with President Ronald Reagan, Republican presidents appointed justices whom they picked to overturn not just Roe but the practice of affirmative action. Justice Clarence Thomas’ 10-page concurrence in Students for Fair Admissions recirculated arguments he has made since joining the Court in 1991 on the damaging effects affirmative action has had on its supposed beneficiaries.

“Racialism,” he wrote, “simply cannot be undone by different or more radical racialism… Far from advancing the cause of improved racial relations in our Nation, affirmative action highlights our racial differences with pernicious effect: In fact, recent history reveals a disturbing pattern: Affirmative action policies appear to have prolonged the asserted need for racial discrimination.”

In a 2007 school desegregation case, Roberts, appointed by President George W. Bush, declared, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” On Thursday, he used nearly the same language in striking down affirmative action once and for all in university admissions: “Eliminating racial discrimination means eliminating all of it… For ‘[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color … If both are not accorded the same protection, then it is not equal.”

Justice Samuel Alito, also appointed by President George W. Bush, belonged to a group at his alma mater, Princeton University, that opposed admitting women in the 1970s and has been opposed to affirmative action ever since joining the Court in 2005.

As for the remaining three justices in the majority, appointed by President Donald Trump, I had the privilege of working as special counsel to Senate Judiciary Committee Democrats in each of their confirmation hearings. Affirmative action was largely overshadowed in their hearings by concern over Roe’s fate, but there never was any doubt about where the three came down on the issue.

Trump promised to appoint justices “very much in the mold of Justice Scalia,” who consistently urged the overturning Roe and all affirmative action measures. Just as Trump took credit for the overruling of  Roe, he can take credit for the three appointments that helped guarantee the end of affirmative action in higher education.

No one doubted Trump was correct about how his appointees would rule: Justice Neil Gorsuch’s praise for Scalia’s “great project” in a tribute in 2016, Justice Amy Coney Barrett clerking for Justice Scalia and vow to the Senate Judiciary Committee during her confirmation hearings that Justice Scalia’s “judicial philosophy is mine, too” and Justice Brett Kavanaugh was, like the other two, vetted by the Federalist Society, which had recommended his nomination to Trump as someone who would fulfill its objectives to overrule both Roe and affirmative action in university admissions.

The legal ramifications of this decision will be felt for years. Several are particularly noteworthy.

To begin with, Thursday’s decisions reinforced the importance of presidential elections. Over the past 45 years, Republican presidents have appointed nine of the 14 justices appointed during the period, all with the hope of weakening the Court’s progressive precedents in a range of areas, including affirmative action.

Indeed, this ruling reveals the justices’ different attitudes about the importance of precedent. Being “very much in the mold of Justice Scalia” also has meant disdain for liberal precedents, as both Scalia and Justice Thomas urged overruling precedents more than any of their contemporaries on the Court.

While Roberts pointedly noted in Thursday’s opinion that the Court was not overruling any precedents in its decisions, he neglected to acknowledge – as the dissents of both Justices Sonia Sotomayor and Brown Jackson stressed – that the Court had repeatedly upheld affirmative action in university admissions ever since the Bakke decision 45 years ago. When the Court overruled Roe a year ago, it neglected to mention that three of the justices who voted to overturn it had described it in their confirmation hearings as “settled law” or “important precedent” that should be treated as such.

Moreover, the vote here spotlights why the Court is long overdue for a code of ethics establishing a uniform rule requiring justices to recuse themselves when they encounter possible conflicts of interest. While Brown Jackson agreed not to sit on the Harvard case because of her membership on Harvard’s governing board, Roberts, who also attended Harvard College and Law School, participated in the case and voted to strike the policy – at his alma mater – down. Two other justices – Gorsuch and Justice Elena Kagan – did not recuse themselves from the case even though they each had graduated from Harvard Law School. Such disparate outcomes do not do the Court credit.

Last but hardly least, Thursday’s decision is far from the last time the Court will be examining admission policies across the nation. We can expect judicial challenges to be brought against any colleges or universities’ relying on essays discussing students’ racial backgrounds or experiences (in trying to create the best mosaic of a class possible) and other practices – such as considering gender as a basis for university admissions – that, for a majority on the Court, may have the same constitutional defects as the overturned admissions policies used.

Future decisions will settle whatever remains of affirmative action in employment and other contexts, including clarifying once and for all whether the 14th Amendment’s Equal Protection Clause does anything more than outlawing any express racial discrimination and leaving any other kinds of measures left to the final discretion of colleges and universities.

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