It was 2003 when the Supreme Court released its decision in Grutter v Bollinger, 539 U. S. ____ (2003), in which a bare majority allowed the University of Michigan Law School to continue to consider race in its admissions decisions. Associate Justice Sandra Day O’Connor concluded, in something we have cited previously:

We take the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its race-conscious admissions program as soon as practicable. See Brief for Respondents Bollinger et al. 34; Bakke, supra, at 317ñ318 (opinion of Powell, J.) (presuming good faith of university officials in the absence of a showing to the contrary). It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.^[1]Grutter v Bollinger, Decision of the Court, page 31 of the .pdf file.

I have long said that it was internally both significant and stupid that the Supreme Court allowed something it said would be unconstitutional come June 23, 2028 to be allowable up until that time. Well, it has taken 20 of those 25 years, but the Supreme Court has finally righted that wrong. The Supreme Court finally released its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

To hear the principal dissent tell it, Grutter blessed such programs indefinitely, until “racial inequality will end.” Post, at 54 (opinion of SOTOMAYOR, J.). But Grutter did no such thing. It emphasized—not once or twice, but at least six separate times—that race-based admissions programs “must have reasonable durational limits” and that their “deviation from the norm of equal treatment” must be “a temporary matter.” 539 U. S., at 342. The Court also disclaimed “[e]nshrining a permanent justification for racial preferences.” Ibid. Yet the justification for race-based admissions that the dissent latches on to is just that—unceasing.^[2]Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 36-37 of the decision, and pages 44-45 of the .pdf file.

Chief Justice John Roberts, writing for the majority, emphasized what we have known all along: the racially biased admissions structure being used by colleges and universities was not moving steadily, or in any way at all, to a terminal date in 2028, and that the schools which were party to this case, Harvard University and the University of North Carolina made no claims that they were proceeding toward that end.

In what may be an underappreciated footnote number 9, the Chief Justice noted:

The principal dissent rebukes the Court for not considering adequately the reliance interests respondents and other universities had in Grutter. But as we have explained, Grutter itself limited the reliance that could be placed upon it by insisting, over and over again, that race-based admissions programs be limited in time. See supra, at 20. Grutter indeed went so far as to suggest a specific period of reliance — 25 years — precluding the indefinite reliance interests that the dissent articulates. Cf. post, at 2–4 (KAVANAUGH, J., concurring). Those interests are, moreover, vastly overstated on their own terms. Three out of every five American universities do not consider race in their admissions decisions. See Brief for Respondent in No. 20–1199, p. 40. And several States — including some of the most populous (California, Florida, and Michigan) — have prohibited race-based admissions outright. See Brief for Oklahoma et al. as Amici Curiae 9, n. 6.^[3]Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 38 of the decision, and page 46 of the .pdf file.

If roughly 60% of American colleges and universities do not consider race at all in their admissions decisions, then it becomes clear that the consideration of race is unnecessary.

Court decisions are difficult to read, in large part due to all of the internal citations, but also because lawyers are, let’s face it, not usually all that great with prose. Nevertheless, I’d invite all of my readers — both of them! — to follow the link and read the decision.

There will be thousands of articles about this decision, and at least in our nation’s professional media, most will be negative. Solomon Jones in The Philadelphia Inquirer has a column entitled “Affirmative action is racial justice. The Supreme Court ruling is a step backwards. To be blunt, right-wing activists aren’t fighting to abolish racial preferences. They’re fighting to maintain them.” Mr Jones went through many of the reasons he believes we need Affirmative Action, but his column is noteworthy in one major way: he made no argument at all that the Court’s decision was based on a faulty reading of the Constitution.^[4]Actually, Mr Jones’ column reads very much as though it was written before the Court’s decision was released, and that he had not been able to read the decision before he wrote his piece.

In a mostly straight news article, Susan Snyder reported on how some Pennsylvania universities will deal with the decision, noting the sole exception the Chief Justice allowed, that in individual admission essays, the way racial discrimination impacted an individual applicant, and how he overcame them, could be considered. Count on admissions departments to start advising applicants to write about that!

The Editorial Board also weighed in on the subject.

But there was one brief point in the decision that seemed very important to me, and which I haven’t seen mentioned by anyone else:

The Court soon adopted Justice Powell’s analysis as its own. In the years after Bakke, the Court repeatedly held that ameliorating societal discrimination does not constitute a compelling interest that justifies race-based state action. “[A]n effort to alleviate the effects of societal discrimination is not a compelling interest,” we said plainly in Hunt, a 1996 case about the Voting Rights Act. 517 U. S., at 909–910. We reached the same conclusion in Croson, a case that concerned a preferential government contracting program. Permitting “past societal discrimination” to “serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief ’ for every disadvantaged group.” 488 U. S., at 505. Opening that door would shutter another—“[t]he dream of a Nation of equal citizens . . . would be lost,” we observed, “in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.” Id., at 505–506. “[S]uch a result would be contrary to both the letter and spirit of a constitutional provision whose central command is equality.”^[5]Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 35-36 of the decision, and pages 43-44 of the .pdf file.

The Chief Justice spent a significant amount of time, earlier in the decision, noting how the Fourteenth Amendment specified equal protection of the law, and that many subsequent decisions, as well as statements by elected officials and others, meant that equal protection of the law meant that all were equal under the law, regardless of race. With the paragraph above, the Court said that neither “ameliorating societal discrimination” nor allowing “past societal discrimination” to “serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief ’ for every disadvantaged group” was constitutionally allowable, and that must certainly mean that payments or advantages given to black Americans, from the taxes of white Americans, for the enslavement of their distant ancestors, can be legal.

Robert Stacy McCain noted, amusingly enough, that only Donald Trump, among all living Presidents, is not the descendant of slave owners, as Mr Trump’s family did not arrive on these shores until after slavery had been ended. Since only direct injury, caused by a specifiable person or institution, is the basis for restorative payments, and there are no living Americans who were enslaved, it is impossible, under the Court’s standard to allow all black Americans, none of whom were directly injured by slavery, to be paid by white Americans, none of whom owned slaves and most of whom cannot be traced back to a slaveowner.

Naturally, the Usual Suspects are aghast that the Court said that racial preferences violate the Fourteenth Amendment, but the Court has, for at least 45 years since Regents of the University of California v Bakke tried to massage the Equal Protection Clause of the Fourteenth Amendment to mean something other than what it actually says. Now, at last, the Court has decided that yes, equal protection of the laws actually means equal protection of the laws.
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