The United States Supreme Court is deciding a pair of cases that could end affirmative action programs that consider race in college admissions.
Though the court is the most diverse in American history—with three justices of color and four women—the conservatives, who have historically opposed affirmative action programs, hold a 6-3 majority. And that majority has the power to ban the use of race when the court issues a decision in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina. A decision is expected in June 2023.
If the court were to ban affirmative action, the decision would be part of a larger, profound conservative transformation of constitutional law. The court, for example, demonstrated its willingness to reconsider landmark rulings when it overturned the 1973 abortion decision in Roe v. Wade.
Justice Clarence Thomas, a leading Black conservative, is a well-known opponent of affirmative action programs and recent decisions by the U.S. Supreme Court that allow the use of race as a factor in college admissions.
Thomas’ views are in stark contrast with those of the two other justices of color—Sonia Sotomayor, a Latina, and Ketanji Brown Jackson, a Black woman.
As scholars of constitutional law and civil rights, we believe that the ideological disagreements among the justices of color reflect the national division over how to address the legacies of slavery, Jim Crow and modern-day inequalities.
Historical Underpinnings of Affirmative Action
Following the Civil War, the nation grappled with building a multiracial democracy.
Congress enacted laws that provided race-conscious remedies to construct that new democracy in part.
In addition to enacting laws, the nation adopted the Reconstruction Amendments, transforming the U.S. Constitution. These amendments included the 13th Amendment, which ended slavery, and the 15th Amendment, which provides that the right to vote may not be denied or abridged on “account of race, color, or previous condition of servitude.”
But it was the the 14th Amendment that addressed discrimination against Black Americans by ensuring that no state may deprive any person “the equal protection of the laws.”
The U.S. Supreme Court, from left