The Supreme Court’s Affirmative-Action Decision Is the Anti-Dobbs

In crass political terms, the Supreme Court’s decision in Dobbs paired a moral and legal victory for the Right with a variety of practical pitfalls. Republican lawmakers have navigated their politically treacherous new environment with varying degrees of deftness. But given the Right’s divergent responses to that decision and the disparate regimes they envisioned after Roe, few could honestly say the GOP made the most of a ruling that ushered in a legally sound but deeply unpopular new normal.

By contrast, the Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College is the anti-Dobbs. The decision striking down racially conscious college admissions puts an end to the wildly unpopular policy of affirmative action. Not unlike Dobbs, a loud minority of Americans resent the ruling and will lobby Democrats to find ways around it that may become a political liability.

“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” mourned Justice Ketanji Brown Jackson. “But deeming race irrelevant in law does not make it so in life.” Jackson’s dissent in this case is already receiving the same contrived fêting the late Justice Ruth Bader Ginsburg’s dissents so often enjoyed. But, if we take the polling on affirmative action at face value, progressives are popularizing an argument for racial discrimination that is anathema to most Americans.

The voting public doesn’t like racial discrimination. They do not believe the remedy for discrimination in the past is discrimination today. They do not resent the establishment of “colorblindness” before the law “by legal fiat” (as though there was any other way) in lieu of the establishment of a society composed of angels. They do not defer to the notion that, because humanity is possessed of flaws and frailties, moral failings should be codified into law at the expense of its neutrality.

The progressives in command of the levers of power in higher education have already announced their intention to test the validity of race neutrality in college admissions. Princeton University president Christopher Eisgruber has already promised that “we will do our best to be creative within the limits of the law,” pushing “very hard on socioeconomic diversity” as a possible workaround. Others have forecast a new regime in which colleges will reward even more than they already do students “from historically marginalized backgrounds who also described struggle and adversity in their admissions essays.”

In the majority opinion, Chief Justice John Roberts anticipated this end-run around the law. Opinions to the contrary notwithstanding, “universities may not simply establish through application essays or other means the regime we hold unlawful today,” he wrote. The enforcement of this provision is an invitation to trial lawyers to test higher education’s threshold of financial pain. As of today, the higher education environment is rich with potential targets to test the viability of this assertion.

The Court’s decision in Dobbs overturned a popular but illegitimate status quo. The decision explicitly placed the onus on lawmakers to craft a new legal regime that reflected their policy preferences instead of leaving it to the Court to craft legal standards from the bench. Because it was the Right who resented that status quo, the fraught task of articulating an alternative fell to them.

The Court’s decision in Students for Fair Admissions overturns an unpopular status quo. But, by contrast, it now falls on the Left to craft and advocate its alternative vision. They, too, must navigate a minefield. They appear to resent the imposition of having to popularize their views, the enforcement of which they had long taken for granted. If they let that resentment get the better of them or make the mistake of being honest about the discriminatory admissions policies they prefer, they will reveal just how out of step they are with the voting public.