June 29, 2023 Supreme Court affirmative action decision

A footnote in Justice Ketanji Brown Jackson’s affirmative action dissent notes that her commentary is aimed at the issues raised by the challenge to University of North Carolina’s admission program — and not to the Harvard affirmative action case that was also before the court.

Jackson had recused herself from the challenge to Harvard’s use of race in admissions. She is one of four justices who graduated from Harvard, having attended both its undergraduate and law schools. But for years, she has sat on the university’s board of overseers. She announced during her Senate confirmation proceedings last year that she would not participate in the case against Harvard.

It was unclear in the lead-up to Thursday’s ruling whether the Supreme Court would issue separate opinions in the North Carolina and Harvard case. There was much overlap in the two lawsuits, but also some distinctions.

The Supreme Court ultimately combined its rulings into one majority opinion. Jackson’s dissent, however focused on the specifics of UNC’s admissions program.

In her dissent, she accused the conservative majority of having a “let-them-eat-cake obliviousness” in how the court's affirmative action ruling announced "'colorblindness for all' by legal fiat."

The Supreme Court said US military service academies can continue to take race into consideration as a factor in admissions, despite a ruling effectively ending affirmative action in admissions to colleges and universities.  

In a footnote in the majority opinion, Chief Justice John Roberts said the cases before the court did “not address the issue” and left open the possibility that there are “potentially distinct interests that military academies may present” in a future case. 

During oral arguments, Solicitor General Elizabeth Prelogar stressed the unique interests of the military and argued that race-based admissions programs further the nation’s compelling interest of diversity.

Justice Ketanji Brown Jackson called out the caveat in her dissent. 

Analysis: Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law, said the majority's refusal to address military academies is a "strange punt in an opinion that otherwise goes a long way toward closing the door on all considerations of race in higher education."

“As Justice Jackson’s dissent makes clear, this creates an awkward — and undefended — distinction between why it might be permissible for the federal government to consider race in military admissions, but not for state governments to do so in their civilian universities,” he added.

CNN's Joan Biskupic had a firsthand view of the reading of the Supreme Court's decision on affirmative action Thursday.

Chief Justice John Roberts didn't waste any time in announcing the decision to gut affirmation action in college admissions, Biskupic said.

"You could have heard a pin drop, and he announces right off of the bat that they are rolling back all affirmative action. And I have to say, there was a little bit of defiance in his voice, even though ... this is something that John Roberts has been working on for himself many, many years, back to his time as a young Ronald Reagan administration lawyer. He does not believe in any kind of race conscious remedies," she said.

He also "kind of warned that he did not want universities and colleges to set up programs that might work in the shadows that might somehow take into consideration applicants' racial backgrounds. It was one of his most robust, strongest statements ever," Biskupic reported.

Justice Sonia Sotomayor, the first Latina justice on the court, "talked about the profound mistake that the majority was making here. She said it would close the doors of opportunity to people across the nation — for schools, for business, for the military; it would have such reverberations," according to Biskupic.

"At the very end, she said, 'We shall overcome.' And it was a mournful robust dissent," Biskupic said. "... The weight of history was so evident in the room."

Justice Kentanji Brown Jackson sat "stone-faced," according to Biskupic.

"Even though they were all trying to hold it in check, you could tell by the tension nonetheless on Justice Jackson's face as she looked out," she said.

The justices spoke for such a long time that they had to take breaks to drink water, Biskupic said.

Howard University President Wayne A. I. Frederick called the Supreme Court ruling on affirmative action an "unfortunate decision."

"Historically Black colleges and universities (HBCUs) are carrying an outsized burden to diversify so many industries in America. We represent only 3% of the higher [education] institutions, but we are responsible for 25% of the bachelor's degrees," he said on CNN Thursday. "By not allowing race to be considered in admissions elsewhere, you can put an even more outsized burden on historically Black colleges and universities who don't have the capacity to carry that type of a burden."

The ruling will make admissions decisions very complicated for HBCUs, he argued.

"So it is going to be a road that is going to require a lot more resources. I think that for institutions that don't have as many resources could be blindsided by lawsuits about this," Frederick said.

In her own dissent, Justice Ketanji Brown Jackson accused the conservative majority of having a “let-them-eat-cake obliviousness” in how the court's affirmative action ruling announced "'colorblindness for all' by legal fiat."

Justice Jackson wrote that the majority had “detached itself from this country’s actual past and present experiences.”

“No one benefits from ignorance,” she added.

A footnote in her dissent went after the majority concurrence by Justice Clarence Thomas, the only other Black justice on the court. 

“The takeaway is that those who demand that no one think about race (a classic pink-elephant paradox) refuse to see, much less solve for, the elephant in the room — the race-linked disparities that continue to impede achievement of our great Nation’s full potential,” the footnote said. 

In her broader dissent, Jackson said that the argument made by the challengers that affirmative action programs are unfair “blinks both history and reality in ways too numerous to count.” 

Read her opinion here.

While the Supreme Court ruled colleges and universities can no longer take race into consideration as a specific basis for granting admission, the majority opinion suggested that applicants will still be able to discuss race through a personal lens in their admission essays.

"Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university," the majority states.

The applicant's writing could include discussion of how race affected their life, "be it through discrimination, inspiration or otherwise," Chief Justice John Roberts wrote at the very end of the opinion.

Liberal justices unconvinced: The three liberal justices stressed in their dissent that even if the court did not formally end race-based affirmative action in higher education, its analysis will make it practically impossible for colleges and universities to take race into account.

Justice Sonia Sotomayor said Roberts' reasoning fell far short of what was necessary to achieve diversity on campus.

“Because the Court cannot escape the inevitable truth that race matters in students’ lives, it announces a false promise to save face and appear attuned to reality. No one is fooled,” she wrote.

The Supreme Court says colleges and universities can no longer take race into consideration as a specific basis for granting admission, a landmark decision that upends long-standing precedent that has benefitted Black and Latino students in higher education.

In her fiery dissenting opinion, liberal Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, said the decision will result in a less equal education system in the US.

"The result of today’s decision is that a person’s skin color may play a role in assessing individualized suspicion, but it cannot play a role in assessing that person’s individualized contributions to a diverse learning environment. That indefensible reading of the Constitution is not grounded in law and subverts the Fourteenth Amendment’s guarantee of equal protection," Sotomayor wrote, in part.

The decision "cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter,” the justice wrote.

While the majority contended that an applicant could mention race in a college essays, Sotomayor said that would fall well short of achieving the goal of diversity.  

In one section of her dissent, she said that the “supposed recognition that universities can, in some situations, consider race in application essays is nothing but an attempt to put lipstick on a pig.” 

Sotomayor said the majority employed an “unjustified exercise of power” that will only serve “to highlight the Court’s own impotence in the face of an America whose cries for equality resound.” 

“The devastating impact of this decision cannot be overstated,” she said while reading a synopsis from the bench on Thursday.  

In ending her dissent, Sotomayor quoted Dr. Martin Luther King Jr.

She pointedly did not use the customary language of “I respectfully dissent.” 

Read her opinion here.

Former President Barack Obama and first lady Michelle Obama expressed disappointment at the Supreme Court's decision to gut affirmative action from college admissions.

In a lengthier statement, the former first lady took a more personal tone.

"Back in college, I was one of the few Black students on my campus, and I was proud of getting into such a respected school. I knew I’d worked hard for it. But still, I sometimes wondered if people thought I got there because of affirmative action. It was a shadow that students like me couldn’t shake, whether those doubts came from the outside or inside our own minds," she said.

Michelle Obama said that those students who get accepted into universities due to legacy, athletics and resources are not questioned in the same way.

"So often, we just accept that money, power, and privilege are perfectly justifiable forms of affirmative action, while kids growing up like I did are expected to compete when the ground is anything but level," she said.

"So today, my heart breaks for any young person out there who’s wondering what their future holds — and what kinds of chances will be open to them. And while I know the strength and grit that lies inside kids who have always had to sweat a little more to climb the same ladders, I hope and I pray that the rest of us are willing to sweat a little, too. Today is a reminder that we've got to do the work not just to enact policies that reflect our values of equity and fairness, but to truly make those values real in all of our schools, workplaces, and neighborhoods," she concluded.

In a lengthy concurrence, conservative Justice Clarence Thomas, one of two Black justices on the Supreme Court, spoke in unusually personal terms as he criticized the use of affirmative action policies by colleges and universities.

Thomas described the policies as "rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes." 

Liberal justices including Ketanji Brown Jackson, the first Black woman to serve on the court, have slammed the decision in dissent, saying it is willfully ignorant about inequality in the US.