Looking ahead to the Supreme Court’s potentially radical next move. It is easy to think of the Supreme Court’s decision invalidating Harvard and UNC-Chapel Hill’s affirmative action programs as the end of a long road. A court with a Republican-appointed majority has been chipping away at the legality of using race to allocate state benefits since the Reagan administration. And a young lawyer in Reagan’s White House by the name of John Roberts candidly condemned state affirmative action measures in blunt terms as “highly objectionable.” Now, after Roberts’ opinion Thursday, “objectionable” has become “unconstitutional” thanks simply to the changing composition of the court. Even if this week’s decision is the final flourish of a conservative legal project that has been in the works since the 1980s, it may also signal the opening of a new chapter in the history of American struggles over race. A conservative majority of the Supreme Court could well build on this ruling to undermine further efforts by the government and firms to identify and address harms that fall distinctively on racial and ethnic minorities. There are two important ways in which this week’s decision may be the beginning, and not merely the closing of a chapter, for the court. The first would move the law in a meaningfully more conservative direction. The second, if fully realized, would have destabilizing legal and political consequences on par, or greater, than last year’s decision to throw out Roe v. Wade. The first, and the most likely, “next shoe to drop” after this week’s ruling is a decision invalidating what are called “disparate impact” rules. The idea behind disparate impact is simple: Often, people who act for bad reasons don’t wear their racist motives on their sleeves or are simply negligent about the way their actions entrench past, race-based disadvantage. So disparate-impact laws allow a plaintiff to prove they encountered discrimination by pointing to large and unexplained racial disparities. But conservative justices have had disparate impact in their sights for more than a decade now: This week’s more categorical ruling against race-based college admissions adds a powerful new weapon to their repertoire. For it is impossible to talk of “racially disparate impact” without talking of … race. There are important disparate impact provisions in both state and federal law: Just this March, the Housing and Urban Development Department reinstated a disparate impact housing rule that had been withdrawn by the Trump administration. The main federal employment statute includes language prohibiting disparate impacts, although there is some debate as to how effective it is. Illinois and California also have broad disparate impact prohibitions in their laws. Casting aside all these provisions would make the law much less friendly for those who face discrimination at the hands of someone who’s not stupid enough to tout their unlawful motives. Judicially enforced race-blindness will, therefore, make it easier for people at large to act on race-based motives. In effect, race-blindness by the Supreme Court will make it easier for other people to discriminate. So much for Roberts’ pat but profoundly misleading adage that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” Of course, the rightward turn of the federal courts has meant that discrimination plaintiffs who aren’t white already face an uphill battle. But the second potential “next shoe” might have even more far-reaching and disruptive consequences. Consider a case that has been winding its way through the federal courts in Virginia concerning the admissions processes for the elite Thomas Jefferson High School for Science and Technology in Fairfax County. One of the claims by the group suing the county school board is that the public school engaged in “impermissible racial balancing” by aiming to create an integrated class even without using an explicitly race conscious rule. On this theory, a government action could be challenged not because it mentioned race; it could be challenged because it was intended to mitigate a harm experienced by a specific racial group. There are, to be sure, many technical reasons why the law doesn’t justify this result. But when the plaintiffs in the Thomas Jefferson case demanded a stay preventing the admissions policy from being used in April last year, three conservative justices — Samuel Alito, Clarence Thomas and Neil Gorsuch — voted to grant it, a sign that some support already exists for this approach. Read broadly, a ruling that effectively says “no racial justice” would have sweeping consequences. It could cast into doubt many state and federal statutes enacted in part out of concern for the burdens that fall more heavily on minority groups. Just one example is the state laws that establish protections for minority voters; it’s not hard to imagine a court frequently hostile to minority voters viewing these measures with a gimlet eye. Meanwhile, there remain a dismaying number of policy problems that fall more sharply on racial minorities. Consider, for example, the disturbing racial gap in maternal mortality: The National Institutes for Health found in 2021 that Black women are five times more likely to die by bleeding out in childbirth than white women. The recent, tragic death of track star Tori Bowie is just the tip of the iceberg. A “no racial justice” rule might seriously hinder government from reacting to such horrific facts. To be sure, even if the court declared that the state cannot act to mitigate racially disparate harms, it could avoid such sweeping consequences by arbitrarily cabining its rule: It could, in effect, pick and choose when it sees “integrative intent,” the aim of eliminating barriers created by race in social and economic life. But this would leave state efforts to address racially concentrated harms at the whim of the justices — hardly a better scenario. Why would the court take any of these paths? A longstanding wisdom among political scientists has been that the justices “follow the election returns.” That is, thanks to the close links between the justices and their political sponsors in one or the other party, the court never moves far from broadly majoritarian views. That is no longer the case, if it ever was. According to a recent poll taken by the NORC Center for Public Affairs, some 63 percent of Americans did not want the court to ban race-conscious affirmative action in higher education. And, of course, the strong majority support for abortion rights did not move the court last summer. The Supreme Court today instead moves more closely in line with the preferences of the Republican Party. Radical destabilization of laws promoting equality advance partisan interests in two ways. First, measures such as state voting rights acts are generally disfavored by Republicans. So their ouster has a clear partisan valence. Second, an increasing element of the party takes up arms against what it calls “woke” politics. If the court targets a vague category of race-conscious policies as unconstitutional, this creates a legal frame for what has until now been a free-floating term of political abuse (even if some conservatives flounder when asked what “woke” means). The court hence creates an incentive for partisan figures to label policies they don’t like as “social justice” minded, and so invalid. And when calling something “woke” is tantamount to labeling it “unconstitutional,” there will be a powerful urge to label any policy that favors minorities as discriminatory. In effect, this would tie the hands of Democrats (but not Republicans) from advancing the interests of many of the groups making up their electoral coalition. The affirmative action decision, in this way, may open the gate to a new kind of political warfare — one that soon could easily dominate state and national agendas.
