Harvard Admissions: The Missing Originalism in the Court’s Racial-Preferences Opinions

There are many angles to the Supreme Court’s decision in Students for Fair Admissions Inc. v. President & Fellows of Harvard College, which struck down preferences on the basis of race in college admissions. One that has played a surprisingly quiet role is the Constitution.

A serious discussion of the text and history of the 14th Amendment is conspicuously absent from most of the opinions on both sides of the case. Chief Justice John Roberts’s majority opinion and Justice Brett Kavanaugh’s concurrence both focus heavily on the Court’s prior precedents in this area, and reason from those precedents to the conclusion that racial preferences can be neither perpetual nor free of any judicial scrutiny. Justice Neil Gorsuch’s concurring opinion argues that the case could have been decided solely on the more specific language of Title VI of the Civil Rights Act of 1964, which has independent force. Justice Ketanji Brown Jackson’s dissent, by contrast, largely ignores the Constitution, statutes, and precedents in order to argue about the facts and the general condition of the country.

About the Author

Dan McLaughlin

Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.

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There are many angles to the Supreme Court’s decision in Students for Fair Admissions Inc. v. President & Fellows of Harvard College, which struck down preferences on the basis of race in college admissions. One that has played a surprisingly quiet role is the Constitution.

A serious discussion of the text and history of the 14th Amendment is conspicuously absent from most of the opinions on both sides of the case. Chief Justice John Roberts’s majority opinion and Justice Brett Kavanaugh’s concurrence both focus heavily on the Court’s prior precedents in this area, and reason from those precedents to the conclusion that racial preferences can be neither perpetual nor free of any judicial scrutiny. Justice Neil Gorsuch’s concurring opinion argues that the case could have been decided solely on the more specific language of Title VI of the Civil Rights Act of 1964, which has independent force. Justice Ketanji Brown Jackson’s dissent, by contrast, largely ignores the Constitution, statutes, and precedents in order to argue about the facts and the general condition of the country.