SFFA: Bakke’s Chickens Coming Home to Roost
The Supreme Court’s decision in Students for Fair Admissions v. Harvard will undoubtedly generate enormous debate. Much of that debate will likely focus on whether Chief Justice Roberts effectively overruled the very precedent he purported to apply. Whether the Chief Justice evidenced fidelity to the affirmative action case law he inherited is not the focus of this Essay. Because implicit in inquiries about SFFA’s relationship to precedent is an assumption about the affirmative action cases that preceded SFFA—namely, that Regents of the University of California v. Bakke and its progeny represented a victory for proponents of affirmative action. This Essay complicates that view. Our central claim is that Bakke contained many losses for proponents of affirmative action and that the specific nature of those losses set the stage for precisely the outcome SFFA instantiates. In articulating this view, we do not mean to diminish the significant role affirmative action has played in integrating educational institutions and workplaces. To be perfectly clear about the matter, we are better off as a society because affirmative action has been alive (rather than dead) all these years—and Justice Powell’s opinion in Bakke was a constitutional lifeline.
Our point is that the lifeline Justice Powell extended to affirmative action almost guaranteed that the policy would continue to generate critique and contestation, inside and outside of the courts, in ways that rendered the constitutional life of affirmative action post-Bakke decidedly precarious. That is why we describe the Bakke litigation as entailing losses, notwithstanding the diversity-rationale win. As we will show, Powell’s Bakke opinion sowed the seeds not only for the perpetual battle-for-survival position affirmative action would come to occupy post-Bakke in cases like Grutter v. Bollinger and Fisher v. University of Texas, but also for the reasoning Chief Justice Roberts employed in SFFA. The role Powell’s opinion played in the preceding regard is precisely why we contend that, at least to some extent, SFFA is Bakke’s chickens coming home to roost.
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Introduction
For almost fifty years, universities have employed diversity as their chief substantive justification for affirmative action. While this rationale preceded Regents of the University of California v. Bakke,[1] it was Justice Powell’s Bakke opinion that provided the constitutional foundation on which the defense of affirmative action would come to rest. Justice Powell ruled that diversity was a “compelling” justification for affirmative action,[2] and the Supreme Court eventually coalesced around that rationale.[3] Thus, prior to the Court’s decision in Students for Fair Admissions v. Harvard (SFFA),[4] many universities clung to diversity as the normative and legal foundation for their admissions policies.[5]
The currency of Justice Powell’s diversity rationale with respect to both affirmative action jurisprudence and admissions processes invites one to conceive of Powell’s opinion in Bakke as a friend of affirmative action over and against its juridical foe, SFFA. While the former kept affirmative action alive, the latter killed it. This is roughly how the SFFA dissenters framed the dispute.[6] However, this Essay complicates that account. It argues that Bakke should be remembered as a case that produced numerous losses for proponents of affirmative action.[7] The nature of those losses created conditions of possibility for precisely the outcome SFFA instantiates. To be clear, we celebrate the significant role affirmative action has played in integrating multiple domains of American life. It is better that affirmative action has been alive all these years than dead.
Our point is that the lifeline Justice Powell extended to affirmative action was deeply conflicted and almost guaranteed that the policy would continue to generate critique and contestation. Indeed, as we will show, Justice Powell’s Bakke opinion sowed the seeds not only for the embattled position affirmative action would come to occupy inside and outside of constitutional law, but also for the doctrinal moves Chief Justice Roberts made in SFFA to kill Harvard-style models of affirmative action. To think about this another way, by the time SFFA landed at the doors of the Supreme Court in the juridical cloak of Bakke and its progeny, it was vulnerable and under-protected in ways that Chief Justice Roberts exploited.
Our argument proceeds in three parts. Part I unpacks with greater specificity what we mean when we say that Bakke produced several losses. In addition to complicating Bakke’s normative and doctrinal standing, describing those losses allows us to make several important interventions. First, an accounting of the Bakke losses helps to mark a troubling feature of race law jurisprudence that has largely gone unnoticed: the degree to which the Supreme Court has mobilized multiple dimensions of Justice Powell’s reasoning in Bakke to normalize the racial hierarchy of the status quo. For example, Justice Powell’s view that racial remediation is intrinsically dangerous and divisive has metastasized across broad swaths of race law cases to curtail racial remediation efforts (policies designed to remedy discrimination) beyond the domain of affirmative action. Exposing this dynamic demonstrates that debates about affirmative action are never just about affirmative action. They implicate the broader architecture of civil rights laws and policies. The recent deployment of SFFA to challenge diversity, equity, and inclusion (DEI) initiatives of every sort is a more recent illustration of what we mean.[8] Referring precisely to a version of this metastasizing dynamic, Kim West-Faulcon describes SFFA as a “Trojan horse.”[9] Our analyses of the Bakke losses reveals that Bakke (and the broader body of affirmative action jurisprudence) has been a Trojan horse as well.
Second, the nation’s emerging collective consciousness about and fluency in Supreme Court decision-making creates an opportunity for racial justice advocates to employ the Bakke losses as a form of political education. That education would foreground not just the Court’s undermining of affirmative action and the role affirmative action has played as a Trojan horse, but also an account of equal protection doctrine that could be politically galvanizing—namely, that Bakke’s overarching approach to the Fourteenth Amendment has helped to transform equal protection jurisprudence effectively into a White rights body of law.[10]
Third, foregrounding the Bakke losses exposes the role liberals have played producing them. The terms on which liberals have supported affirmative action have undermined the standing of the policy in constitutional and public discourse. In particular, the liberal framing of affirmative action as a racial preference,[11] a framing that is at the core of Justice Powell’s Bakke opinion, was a significant resource for Chief Justice Roberts. Indeed, in some ways, it is precisely the framing of affirmative action as a preference—and the corresponding claim that the policy harms “innocent” White people—that came home to roost in SFFA.[12] In that regard, our contention that Bakke included several losses is not only a critique of Chief Justice Roberts’s opinion, but also of the liberal defense of affirmative action. Our articulation of the losses in Bakke thus offers liberals and progressives an opportunity to rethink the terms on which they have defended the policy.
Finally, given the fact that SFFA left open more questions than it answered,[13] the story we tell about the Bakke losses can generate a better understanding of Bakke’s relationship to SFFA. That understanding can help proponents of affirmative action identify and respond to the lines of attack that will inevitably follow in the post-SFFA landscape.
Part II builds on Part I’s accounting of Bakke’s losses by demonstrating the nexus between those losses and the normative and doctrinal logics on which SFFA rests. In drawing out that nexus, we are not saying that SFFA was the inevitable outgrowth of Bakke. That would be putting the point too strongly. Indeed, in crafting his majority opinion in SFFA, the Chief Justice overread precisely the parts of Justice Powell’s opinion that were useful to his vision of equal protection and underread the parts that were not. Still, Justice Powell’s opinion in Bakke was an enormous resource for Chief Justice Roberts. Precisely how the Chief Justice traded on that resource is the story we tell in Part II.
Part III focuses on Justice Sotomayor’s dissent. Our starting point is to praise the structural approach to race that underwrites Justice Sotomayor’s theory of equal protection law. Her conceptualization of racial inequality and the role law can and should play in eliminating it was a breath of fresh air. At the same time, we disagree to some extent with her framing of Bakke and its progeny. As we see it, Justice Sotomayor infused those cases with more antiracist bite than was warranted. Justice Sotomayor described Justice Powell’s Bakke opinion as the heir of Brown v. Board of Education, notwithstanding Bakke’s indifference to “societal discrimination” and fixation on the idea that affirmative action renders White people victims of “reverse discrimination.” Moreover, Justice Sotomayor relied heavily on Justice Marshall’s partial dissent in Bakke to reclaim precisely the racial remediation territory Justice Powell’s opinion repudiated. These dimensions of Justice Sotomayor’s dissent—her treatment of Justice Powell’s opinion as a robust antiracist precedent and her reliance on Justice Marshall’s partial dissent to shore up her analysis—further support our view that Bakke was a loss.
We conclude first by interrogating the space Chief Justice Roberts leaves for colleges and universities to incorporate race into their admissions processes. We argue that this space, too, can be linked to Justice Powell’s Bakke opinion and is another indication that, to some extent, SFFA is Bakke’s chickens coming home to roost.[14] We then argue that buried in Justice Powell’s opinion is a remedial justification for affirmative action that scholars and courts have largely ignored. We excavate that justification and argue that it warrants further attention and engagement because it invites us to consider the possibility that Bakke may contain the seeds for its own destruction.
I. The Bakke Losses: Justice Powell’s Opinion
This Part begins to develop our claim that Bakke included multiple losses. We do so by analyzing the key features of Justice Powell’s opinion that laid the foundation for affirmative action’s eventual demise. Our claim that Bakke produced many losses is not the dominant way scholars describe the case. Some commentary suggests that it was a “win” for conservatives. Others maintain that liberals secured a victory in the case. Still, others contend that Bakke produced a win-win outcome in which both the government and the university got something.[15] The image below from the cover of the July 1978 issue of Time magazine captures this win-win reading of the case.
“Race: Yes” (the win for proponents of affirmative action); “Quotas: No” (the win for opponents of affirmative action). Under this view, Justice Powell split the affirmative action baby. Chief Justice Roberts’s opinion in SFFA describes Bakke in precisely this way. According to Chief Justice Roberts, the Court in Bakke “ultimately ruled in part in favor of the school and in part in favor of Bakke.”[16]
But just as in the story of Solomon, there was no splitting of the baby.[17] Sure, proponents of affirmative action got something. But what they got was decidedly less than “Race: Yes.” And with respect to opponents of affirmative action, “Quotas: No” doesn’t even begin to capture what Justice Powell gave to them. This Part elaborates on the multiple antiracism losses that Justice Powell’s opinion produced. Because one cannot understand those losses without understanding the doctrinal framework through which they were expressed—the strict scrutiny doctrine—we begin our analysis with a discussion of that regime.
Central to the strict scrutiny framework is a “trigger” analysis, a “compelling interest” analysis, and a “narrow tailoring” analysis. Below, we describe each of these components of strict scrutiny and explain how Justice Powell’s application of them to affirmative action produced several losses to antiracism. We begin with the strict scrutiny trigger.
A. The Strict Scrutiny Trigger
Every student of constitutional law learns that a key feature of Justice Powell’s Bakke opinion is its conclusion that affirmative action policies trigger the highest level of judicial review—strict scrutiny.[18] Even though this is now settled law, it was not in 1978.[19] That was a loss. The University of California had argued that because affirmative action was a “benign” form of differential treatment, a more flexible level of scrutiny should apply.[20] Justice Powell rejected the idea, reasoning that courts lacked the ability ex ante to distinguish between benign and invidious racial classifications[21] and that all racial classifications were suspect and should therefore trigger strict scrutiny.[22] To repeat, that was a loss.
Part of what motivates our conclusion that the application of strict scrutiny to affirmative action was a loss is the view that, under strict scrutiny, judges are more likely to declare affirmative action policies unconstitutional.[23] However, even assuming that, with respect to affirmative action, strict scrutiny has largely been “strict in theory but not fatal in fact,”[24] the application of strict scrutiny to affirmative action remains a problem. That is because separate from whether a given affirmative action plan survives strict scrutiny is the message the application of strict scrutiny to affirmative action sends about the policy—that the policy is suspect and undermines, rather than advances, our commitment to racial equality; undermines, rather than advances, our commitment to fairness; and undermines, rather than advances, our commitment to community and social cohesion. In short, the application of strict scrutiny to affirmative action sends a signal that affirmative action is potentially dangerous to our core values and collective identity as a nation. In this regard, the loss here is both that, under strict scrutiny, affirmative action is always struggling to survive a constitutional assault and that the doctrinal stage on which this is playing out advances normative ideas about affirmative action that delegitimate and generate controversy about the policy. The suspect status that strict scrutiny attributes to affirmative action is a loss both doctrinally and normatively.
A further loss in Justice Powell’s decision to apply strict scrutiny to affirmative action is Justice Powell’s re-reading—indeed, re-writing—of key Fourteenth Amendment cases. For example, he mobilized Brown v. Board of Education to support the view that any governmental reliance on race is per se constitutionally suspect. Invoking Brown, Justice Powell suggested that the Court’s failure to subject affirmative action to strict scrutiny would be tantamount to turning “[t]he clock of our liberties . . . back to 1868.”[25] Justice Powell also revised the central concern of Loving v. Virginia, a case that expressly articulated its holding in opposition to “White Supremacy.”[26] In Justice Powell’s opinion, Loving was not a case about the abolition of racial subordination. It was a case about the prohibition of racial classifications.[27]
We should take care to note that, of course, there are parts of Brown and Loving that align with Justice Powell’s reading of those cases. To the extent that one views the Equal Protection Clause as a vehicle for dismantling racial hierarchy, that will include targeting racially subordinating classifications, such as those that installed the Jim Crow regime. But a constitutional project that seeks to eliminate Jim Crow-like racial classifications (such as the NAACP’s efforts to overturn Plessy v. Ferguson) is not the same as one that seeks to delegitimize any governmental use of race (such as the efforts of White plaintiffs in key affirmative action precedents). Justice Powell’s interpretation of Loving and Brown as simple anti-classification cases extracts them from the context out of which they arose and obscures the degree to which both were concerned with eliminating substantive racial subordination, not with casting suspicion on any use of race.[28] That was a loss.
Significantly, Justice Powell’s anti-classification reading of Brown and Loving would go on to transcend the borders of Bakke. Justice Powell’s redirection of Fourteenth Amendment jurisprudence from a concern about racial inequality to a concern about taking race into account has functioned to circumscribe not only the scope and permissibility of affirmative action policies but also other remediation efforts as well. The Supreme Court has drawn directly or indirectly on Justice Powell’s reasoning in Bakke to undermine the pursuit of equality in other areas, including affirmative action policies outside of the context of education,[29] voluntary integration initiatives,[30] the creation of majority-minority voting districts,[31] efforts to mitigate the racially disparate impact of hiring and promotion criteria,[32] the promotion of Indigenous sovereignty,[33] the pre-clearance requirements of the Voting Rights Act,[34] the political process doctrine,[35] and death penalty jurisprudence.[36] The exportation of Bakke’s racial logics to other areas of race jurisprudence has also been a loss.
At a comparative level, Justice Powell’s conclusion that any governmental racial classification is immediately suspect has rendered antiracist interventions the most constitutionally suspect form of identity-based remediation and therefore the most vulnerable to constitutional attack. The government enjoys more leeway to address inequalities that sound in the language of gender, class, and sexual orientation than those that sound in the language of race.[37]
* * *
Thus far, we have argued that Justice Powell’s decision to apply strict scrutiny to affirmative action—his strict scrutiny “trigger” analysis—was a loss. We now turn our attention to the two doctrinal inquiries that structure the strict scrutiny framework: the “compelling interest” inquiry and the “narrow tailoring” inquiry. The former asks whether there is a compelling justification for the government’s use of race; the latter asks whether the means chosen to effectuate that justification are narrowly tailored.[38] As we explain below, Justice Powell’s explication of both inquiries produced additional antiracist losses.
B. The Compelling Justification Analysis
The University of California, Davis, Medical School—the defendant in Bakke—advanced four justifications for its affirmative action policy: (1) combatting societal discrimination, (2) mitigating the underrepresentation in medical school of students from disadvantaged racial groups, (3) facilitating the delivery of medical services to underserved communities, and (4) achieving the educational benefits of diversity.[39] Justice Powell rejected the first two, suggested that the third lacked empirical foundation,[40] and endorsed the fourth: diversity.[41]
Importantly, Justice Powell’s conclusion that diversity could serve as a compelling justification for affirmative action was not an argument about racial diversity per se. Justice Powell was clear that the government may take racial diversity into account only if it also credits other forms of diversity, such as gender, class, or geography.[42] The fact that Justice Powell did not perceive racial diversity, standing alone, as a compelling predicate for affirmative action was a loss.
Justice Powell’s turn to diversity was a loss in two other ways. First, Justice Powell’s diversity rationale effectively took off the table more progressive, compensatory, and redistributive justifications for affirmative action (such as combating societal discrimination).[43] Second, and relatedly, Justice Powell’s turn to diversity had broad effects on discourses about race outside of the university context. In the decade leading up to Bakke, the concept of racial diversity occurred infrequently: 242 times in legal literature and 513 times in the social sciences.[44] By the 1990s, it showed up 4,914 times in law reviews and 8,874 in social sciences literature. In the last decade, this has grown even more dramatically to 8,980 instances in legal literature and 37,428 in the social sciences.[45] Whether public discussions about racial equality focus on higher education, the military, corporate America, political representation, K–12 education, or combating de facto racial segregation, those discourses typically rehearse claims about diversity—most recently in the form of “diversity, equity, and inclusion” or “DEI.”[46] The dominance of the diversity rationale fenced out other discursive registers in which to pursue racial justice, such as remedying past and present discrimination. That has been a loss.
Justice Powell’s application of the “compelling interest” requirement was a loss in another sense still. Justice Powell dramatically narrowed the constitutional definition of “discrimination” by contrasting “societal discrimination” with “identified discrimination”—and deeming only the latter a compelling interest.[47] Justice Powell defined “identified discrimination” as “wrongs worked by specific instances of racial discrimination,” such as Jim Crow legislation.[48] Societal discrimination, he argued, was “an amorphous concept of injury that may be ageless in its reach into the past.”[49]
Justice Powell’s reference to “identified discrimination” was another way of saying “intentional discrimination,” thus his reference to Jim Crow legislation. While scholars have spilled much ink criticizing the mooring of equal protection doctrine to an intentional model of discrimination, they have paid considerably less attention to Justice Powell’s role in instantiating that arrangement.[50] To begin, Justice Powell joined Justice White’s opinion in Washington v. Davis, decided a couple of years before Bakke, holding that plaintiffs seeking to advance an equal protection claim on the basis of race had to establish discriminatory intent.[51] A showing of disparate impact was not enough. Enter Bakke. Here, as we have discussed, Justice Powell makes clear that it is the intentional use of race that is per se constitutionally suspect and that institutions seeking to justify their affirmative action programs on grounds other than diversity must show that they themselves had at some prior moment engaged in intentional (“identified”) discrimination.
In subsequent cases, the Court, with Justice Powell in the majority, doubled down on the view that intent is a prerequisite for sustaining an equal protection challenge. In Personnel Administrator of Massachusetts v. Feeney, an opinion that Justice Powell joined, the Court explained that the relevant equal protection question is whether “the decision maker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”[52] Then came McCleskey v. Kemp,[53] decided almost a decade after Bakke. There, Justice Powell maintained that statistical evidence demonstrating racial bias against African Americans in the administration of the death penalty was insufficient to establish discriminatory intent. According to Justice Powell, the disparate impact evidence in the case was “clearly insufficient to support an inference that any of the decisionmakers in McCleskey’s case acted with discriminatory purpose.”[54]
Against the background of Justice Powell’s role in solidifying both the intent standard in equal protection doctrine and the application of strict scrutiny to remedial uses of race, it is worth pausing to note how strict scrutiny and the intent standard interact. That interaction creates a juridical structure that erects barriers to racial remediation and clears pathways to challenge such efforts. To be more precise, proponents of racial remediation have a difficult time not only employing equal protection law as a sword with which to allege claims of discrimination (“No, I don’t have direct evidence that the institution intentionally discriminated against me due to my race.”); they also have a difficult time employing equal protection as a shield to protect them from charges that they are beneficiaries of “racial preferences” that discriminate against White people (“Yes, I concede that the university intentionally takes race into account in deciding which students to admit.”). Opponents of racial remediation, on the other hand, are in a very different doctrinal position. They can use equal protection law as a shield against charges of discrimination (“There is no evidence that the government actor in question intentionally discriminated against you.”) and as a sword to wield charges of discrimination (“The intentional use of race in your affirmative action plan violates equal protection or at a minimum triggers strict scrutiny.”). Understood in that way, it is not unreasonable to frame equal protection doctrine as a body of law (re)designed to protect the interests of White people. Justice Powell’s rejection of societal discrimination as too “amorphous”[55] to be constitutionally cognizable is part of this legal shift and helped to create this broader racial economy.
Part of what’s striking about Justice Powell’s dismissal of societal discrimination is that it came circa 1978, barely two decades after Brown v. Board of Education declared that separate-but-equal was unconstitutional[56] and roughly a decade after both Loving v. Virginia (which delegitimized anti-miscegenation statutes on the view that such laws promoted “White Supremacy”)[57] and the “Second Reconstruction” (which produced a range of civil rights legislation).[58] In other words, Justice Powell wrote his Bakke opinion in a context in which African Americans had barely emerged from Jim Crow and remained hobbled by vast racial disparities.[59]
Yet, neither the violence of Jim Crow nor the racial progenies, including racial disparities, it had already generated by the 1970s figured in Justice Powell’s opinion. It is hard to frame that absence as a mere oversight for which Justice Powell might be forgiven. After all, Justice Marshall’s partial dissent put Justice Powell on notice as to the reality of second-class citizenship for Black Americans. After providing a sobering account of the ways in which racism had evolved over time, Justice Marshall went on to make the following observations:
The position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment. Measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream for the Negro.
A Negro child today has a life expectancy which is shorter by more than five years than that of a white child. The Negro child’s mother is over three times more likely to die of complications in childbirth, and the infant mortality rate for Negroes is nearly twice that for whites. The median income of the Negro family is only 60% that of the median of a white family, and the percentage of Negroes who live in families with incomes below the poverty line is nearly four times greater than that of whites.
When the Negro child reaches working age, he finds that America offers him significantly less than it offers his white counterpart. For Negro adults, the unemployment rate is twice that of whites, and the unemployment rate for Negro teenagers is nearly three times that of white teenagers. A Negro male who completes four years of college can expect a median annual income of merely $110 more than a white male who has only a high school diploma.
Although Negroes represent 11.5% of the population, they are only 1.2% of the lawyers and judges, 2% of the physicians, 2.3% of the dentists, 1.1% of the engineers and 2.6% of the college and university professors.
The relationship between those figures and the history of unequal treatment afforded to the Negro cannot be denied. At every point from birth to death, the impact of the past is reflected in the still disfavored position of the Negro.
In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order. To fail to do so is to ensure that America will forever remain a divided society.[60]
We quote Justice Marshall at some length here because, in rather concrete terms, Justice Marshall’s account revealed that there was nothing “amorphous” about “societal discrimination”—and nothing “suspect” about naming how “societal discrimination” had marred Black people’s lives.[61] The receipts were there, but Justice Powell chose to ignore them.
Motivating Justice Powell’s reasoning is the now-familiar “that-was-then-but-this-is-now” civil rights displacement strategy.[62] A key feature of this strategy is the claim not only that racism is largely a thing of the past but also that racial remediation efforts are racial preferences or a form of racial entitlement that harm innocent White people[63] and create “debtor” and “creditor” races.[64]
Importantly, Justice Powell’s Bakke opinion was not the first to frame racial remediation efforts as racial preferences in order to reject the view that such efforts advance our constitutional commitment to equality. As early as 1883, in the Civil Rights Cases,[65] the Supreme Court described civil rights legislation as constitutionally suspect. The specific law at issue in the Civil Rights Cases was the Civil Rights Act of 1875, which made it a crime to deny people equal access to “inns, public conveyances on land, theaters, and other places of public amusement” on the basis of race.[66] The Supreme Court ruled that Congress exceeded its authority when it passed the legislation.[67] According to the Court,
When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws.[68]
Justice Powell employed strikingly similar language in his opinion: “It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others.”[69]
If in the Civil Rights Cases (decided less than two decades after the Thirteenth Amendment was enacted) the “then” denoted slavery and the “now” denoted formal freedom, in Justice Powell’s opinion the “then” denoted Jim Crow and the “now” denoted formal equality. From Justice Powell’s vantage point, there is little the Constitution can do about inequality that is neither expressly inscribed in the law nor linked to evidence of intentional racial discrimination.
Justice Powell claimed (in a footnote) that he found the existence of societal discrimination “regrettable.”[70] But in the context of expressing that regret, Justice Powell effectively asked: Who is responsible for producing societal discrimination? His answer: no one. From Justice Powell’s perspective, societal discrimination is not an identifiable bad actor.[71] Nor are there identifiable people or institutions to whom one can attribute the existence of societal discrimination.[72] Justice Powell doubled down on these points via a claim about causation. He stressed that the medical school failed to demonstrate that “but for this discrimination by society at large, Bakke ‘would have failed to qualify for admission’ because Negro applicants . . . would have made better scores.”[73] According to Justice Powell, “[n]ot one word in the record supports this conclusion.”[74] The absence of this empirical showing is one of the reasons Justice Powell concluded that societal discrimination cannot serve as a “compelling interest” for affirmative action.
It’s not clear what “record” could establish that, but for racism, Black people would manifest the same formal qualifications for medical school as White people. It takes disputing what should be our starting point for discussions about race and educational access—namely, that Black people and White people are equal in our intellectual abilities and commitments—to take Justice Powell’s counterfactual seriously. In that regard, it’s worth pausing and contemplating the ease with which Justice Powell’s argument about causation trades on “feelings of inferiority” with respect to Black intellectual capabilities.[75]
For example, imagine that Racially Marginalized Group A experienced multiple rounds of legalized racial subordination at the hands of Racially Privileged Group B. Assume that one of those rounds of subordination ended roughly ten years ago and that Group A is currently disadvantaged along every dimension of social life in comparison to Group B. Under the foregoing stipulations, the race-neutral assumption should be that, but for Group A’s history of racial subordination, members of that group would not be systemically disadvantaged relative to members of Racial Group B. And the corollary point would be that, but for Group B’s privileged position in that history, members of Group B would not be systemically advantaged relative to members of Group A.[76]
To apply the preceding insights to Bakke, Justice Powell should have recognized that, in the absence of historical racial subordination and contemporary societal discrimination, there would be no racial disparity between Black people’s and White people’s formal academic performance. This is precisely the point that Justice Brennan made in his opinion[77] and that Justice Powell contested. According to Justice Powell,
No one denies the regrettable fact that there has been societal discrimination in this country against various racial and ethnic groups. The second step, however, involves a speculative leap: but for this discrimination by society at large, Bakke ‘would have failed to qualify for admission’ because Negro applicants . . . would have made better scores. Not one word in the record supports this conclusion . . . .[78]
But the question is not so much whether Bakke would have failed to qualify for admission (again, Bakke did not—and was not required to—prove that, but for the affirmative action policy the medical school administered, he would have been admitted). The question is whether, but for historical and contemporary discrimination against Black people, the incoming credentials of Black people and White people in general would look the same.
Engaging the preceding question is important because Justice Powell spent considerable time marking the difference between Black students’ and White students’ incoming qualifications.[79] Again, the question is whether, in the absence of the racial subordination of Black people, that difference would exist. According to Justice Powell, answering that question in the negative required a “speculative leap.”[80] His thinking in that regard implicitly advanced one of two ideas: Either White people are naturally intellectually superior to Black people, or they have a stronger culture of and a deeper commitment to education and learning than Black people. In either view—by blood/nature or culture/nurture—Justice Powell’s opinion normalized Black people’s subordinate position and instantiated what we call a “competence suspicion”[81]: Are Black people really qualified to attend, and really capable of succeeding in competitive institutions like UC Davis’s medical school? Or do they (naturally) belong on the bottom? Justice Powell implied that the natural social arrangement with respect to the demographic configuration of universities is that Black people should be underrepresented and White people should be overrepresented. In all of this, Justice Powell ignored the historic and systematic ways in which law and society treated White people as “special wards,”[82] installing them at the top of not only universities, but also virtually every area of American life. If Justice Powell had taken this history of discrimination seriously, he might have found that the Equal Protection Clause requires governments to engage in remedial affirmative action. However, the possibility of mandatory affirmative action was not even on the table for Justice Powell.
Had Justice Powell taken the history of racial subordination seriously, he would have found that remedying “societal discrimination” is a compelling state interest. The disparity between Black students’ and White students’ formal academic indicators should have signaled to Justice Powell an inequality problem, not a competence one, that the state had the power—if not the constitutional duty—to remedy. To draw from another area of law, in Justice Powell’s analysis, racism does not operate as a “poisonous tree” from which the “fruit” of Black inequality grows.[83] Indeed, Justice Powell barely mentioned racism at all. Once again, Justice Marshall’s opinion is a useful counter-position with respect to foregrounding precisely what Justice Powell’s leaves out. Justice Marshall argued that:
[I]t is more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible. In declining to so hold, today’s judgment ignores the fact that for several hundred years Negroes have been discriminated against not as individuals, but rather solely because of the color of their skins. It is unnecessary in 20th-century America to have individual Negroes demonstrate that they have been victims of racial discrimination; the racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its impact.[84]
By contrast, Justice Powell perceived nothing “suspect” about Bakke’s claim that he was entitled to be admitted to UC Davis. As we mentioned earlier, Justice Powell did not require Bakke to show that, but for the school’s use of affirmative action, he would have been admitted.[85] (No affirmative action plaintiff has to meet that burden.[86]) But the issue of causation was highly salient at the trial court level.[87] And that court explicitly found that Bakke failed to demonstrate that “he would have been admitted but for the existence of the special program.”[88]
Bakke’s inability to establish causation could easily have grounded an argument that it was “regrettable” that Bakke felt aggrieved by the medical school’s use of affirmative action, but that his Fourteenth Amendment claim was simply too “amorphous” to have constitutional traction. But that was not the argument Justice Powell embraced. With no interrogation of Bakke’s sense of entitlement, no deployment of strict scrutiny to, at a minimum, render Bakke a suspect antidiscrimination figure, and no reckoning with how racial inequality was structuring Black life, Justice Powell’s opinion creates the impression that the Black beneficiaries of the medical school’s affirmative action plan were, to borrow a concept that LaToya Baldwin Clark employs in a different context, “stealing” Bakke’s educational opportunity to attend medical school.[89]
And “stealing” might be exactly the right metaphor here. Indeed, it is only slightly hyperbolic to describe Justice Powell’s equal protection analysis as erecting a juridical structure designed to strictly scrutinize—treat as presumptively suspect—Black beneficiaries of racial remediation to ensure that they do not “steal” White opportunities. The broader point we are making is that Justice Powell did not treat societal discrimination as a suspect social force that should be strictly scrutinized because it lacks a compelling justification and imposes impermissible burdens on Black people (among other people of color). Rather, Justice Powell treated affirmative action (among other forms of racial remediation) as suspect because, in his view, the policy generally lacks a compelling justification and imposes “impermissible burdens [on White people] . . . to enhance the societal standing of [Black people].”[90] Justice Powell’s dismissal of “societal discrimination,” and centering of White entitlement and victimology, was a loss.
C. The Narrow Tailoring Analysis
We turn now to Justice Powell’s narrow tailoring analysis, where our discussion will be decidedly brief. Justice Powell concluded that the medical school’s use of quotas violated the requirements of narrow tailoring. He reasoned that to satisfy narrow tailoring, universities must treat race as one factor among many in deciding which students to admit, a view the Supreme Court would subsequently reaffirm.[91] That was a loss. The loss here is not just that quotas are per se problematic under Justice Powell’s narrow tailoring analysis. Nor is the loss fully captured by the fact that opponents of affirmative action would subsequently draw on Justice Powell’s discussion of quotas to contest colleges’ and universities’ efforts to take notice of the demographic makeup of their campuses and various stages of their admissions process (for example, the demographics of the application pool, the students who are admitted, and the students who enroll). The loss is also that Justice Powell’s race-as-one-factor-among-many approach obscures the role race has played as a subordinating feature of social life and creates a false equivalency between being Black and “diverse” traits such as playing a musical instrument.[92]
D. Summary
Thus far, we have argued that Justice Powell’s opinion was a loss for proponents of affirmative action. Our account challenges strong versions of the “win” and the “win-win” interpretations of the case. To be sure, Justice Powell kept affirmative action alive. But barely—and he did so on terms that not only left affirmative action constitutionally suspect but also reflected a cramped understanding of racial discrimination. These moves created a pathway to Chief Justice Roberts’s opinion in SFFA.
To recap these losses:
· Justice Powell’s opinion did not find that the Equal Protection Clause mandated institutions to engage in remedial affirmative action; it merely permitted them to do so.
· Justice Powell’s opinion applied strict scrutiny, rather than intermediate scrutiny or rational basis review, to affirmative action.
· Justice Powell’s opinion did not distinguish between benign and invidious uses of race.
· Justice Powell’s opinion did not require plaintiffs in affirmative action cases to demonstrate that, but for a university’s use of affirmative action, they would have been admitted.
· Justice Powell’s application of strict scrutiny helped to further entrench the intentional discrimination paradigm in equal protection doctrine.
· Justice Powell’s contention that any use of race triggers strict scrutiny helped to instill hostility to racial remediation as a constitutional norm.
· Justice Powell’s race-per-se-is-bad approach to equal protection has metastasized across broad bodies of law.
· Justice Powell’s diversity rationale displaced other, more progressive racial justice discourses in law and society.
· Justice Powell conceptualized affirmative action as a racial preference rather than an antidiscrimination countermeasure to level the admissions playing field.
· Justice Powell disabled the government from addressing “societal discrimination” via the claim that “societal discrimination” is too “amorphous” to have constitutional traction.
· Justice Powell dismissed societal discrimination as “amorphous” normalized racial hierarchy, implying that White people belong on top of and should be overrepresented in elite institutions and Black people belong on the bottom and should be mere tokens. This hierarchy is not suspect, but racial classifications are.
· Justice Powell ruled that countering the underrepresentation of students of color in medical school was not a “compelling” justification for affirmative action.
· Justice Powell’s refused to defer to the university’s claim that its affirmative action program facilitated the delivery of medical services to under-served populations.
· Justice Powell effectively rewrote key equal protection precedent to render affirmative action in tension with cases such as Brown v. Board of Education and Loving v. Virginia.
· Justice Powell failed to assume that, but for historical and contemporary racial inequality, there would be no difference in the incoming credentials of White and Black students. His failure in that regard traded on and reinscribed stereotypes about Black intellectual capacity.
· Justice Powell argued that the government may consider race only if it includes other forms of “diversity,” such as gender, class, and geography. No rule requires the same of gender-, class-, and geography-based policies.
· In Justice Powell’s opinion, race-based remediation policies are uniquely suspect (as compared to gender, class, and sexual orientation) and thus are the most difficult constitutionally to defend.
· Justice Powell’s opinion helped to make White entitlement and grievance politics a core part of equal protection doctrine by advancing the idea that Black people who gain admission to elite universities are “stealing” White people’s educational opportunities.
· Justice Powell’s opinion rejected quotas as a “narrowly tailored” mechanism to effectuate affirmative action.[93]
II. The Bakke Losses: Chief Justice Roberts’s Opinion
This Part demonstrates the discursive, normative, and doctrinal nexus between the losses we attribute to Bakke, on the one hand, and the outcome and reasoning of SFFA, on the other. Before we proceed to describe this connection, an important caveat is in order. We are not saying the blame for SFFA lies entirely at the feet of Justice Powell. To repeat the point we made earlier, Justice Powell’s opinion in Bakke did not cause SFFA. There is a broader story that one might tell about the ways in which, prior to Bakke, the Supreme Court had already begun restricting the scope of race-conscious remediation. That story implicates even celebrated cases such as Brown v. Board of Education, which itself generated a literature about what Brown should have said.[94] To be sure, few people would contend that Brown was a loss. Yet some scholars have argued that Brown’s framing of racial segregation, and its overall doctrinal analysis, put arguments for material equality, affirmative action, disparate impact, and expansive understandings of state action, among other structural dimensions of race, at a conceptual, normative, and discursive disadvantage going forward.[95]
Moreover, remember the point we made earlier about Washington v. Davis, the case—decided two years before Bakke—that helped to install an “intentional discrimination” paradigm in equal protection doctrine.[96] Though Justice Powell was himself part of the majority opinion in Davis, it is still fair to say that that opinion limited the antidiscrimination terrain Bakke inherited.[97] Finally, notwithstanding that we are drawing a nexus between Bakke and SFFA, we should note that other affirmative action cases played a role in mediating the pathway from Bakke to SFFA, even as those cases themselves largely reproduced Justice Powell’s reasoning.[98] Indeed, as Chief Justice Roberts observed in SFFA, “Justice Powell announced the Court’s judgment, and his opinion—though written for himself alone—would come to ‘serv[e] as the touchstone for constitutional analysis of race-conscious admissions.’”[99]
Thus, keeping in mind the caveats we have just articulated, our aim below is to demonstrate “the touchstone” effect of Bakke on SFFA. To do so, we put into even sharper relief the Bakke losses by answering a series of “yes” or “no” questions vis-à-vis Justice Powell’s opinion. These questions indicate how each loss implicates SFFA. Importantly, the questions we pose are neither random nor cherry-picked. They are questions that are relevant to or expressly engaged in Bakke and SFFA (and the affirmative action cases decided between these two rulings). We employ the “yes” or “no” rhetorical device as an economical pedagogical mechanism to spotlight with even greater specificity, and make even more salient, the losses we attribute to Bakke and to connect those losses to SFFA.
1. Did Justice Powell’s Bakke opinion rule that affirmative action was mandatory? No.
This question didn’t even arise in SFFA because the case law Chief Justice Roberts inherited, starting with Justice Powell’s Bakke opinion,[100] positioned affirmative action as inherently in tension with equal protection.[101] Thus, the relevant constitutional question for Chief Justice Roberts was not whether colleges and universities were required to have affirmative action plans but rather the circumstances under which such plans could square with the commands of equal protection.[102]
2. Did Justice Powell’s opinion rule that affirmative action should be subject to rational basis or intermediate review? No.
Relying on Bakke[103] and subsequent precedents,[104] Chief Justice Roberts treated the Court’s application of strict scrutiny to affirmative action as a juridical fait accompli.[105] Moreover, in a footnote, Chief Justice Roberts criticized Justice Jackson for, in his view, suggesting that affirmative action should not be subject to strict scrutiny: “[O]ne dissent candidly advocates abandoning the demand of strict scrutiny . . . An opinion professing fidelity to history (to say nothing of the law) should surely see the folly of that approach.”[106] In sum, because Justice Powell was so clear that race per se triggers strict scrutiny, there was no real dispute in SFFA about whether strict scrutiny was the appropriate standard of review.
3. Did Justice Powell’s opinion differentiate between benign and invidious uses of race to determine whether strict scrutiny should apply? No.
SFFA is in accord. “Eliminating racial discrimination,” Chief Justice Roberts reasoned, “means eliminating all of it.”[107] The “all of it” to which Chief Justice Roberts referred includes affirmative action and, by extension, other benign ways of taking race into account. Particularly telling is the Chief Justice’s conflation of “all invidious racial discrimination[]”[108] with “racial discrimination,”[109] “racial classification,”[110] “[r]acial and ethnic distinctions,”[111] and “race-based governmental action.”[112] This conflation then led Chief Justice Roberts to conclude that “[r]acial discrimination [is] invidious in all contexts.”[113]
4. Did the Powell opinion reject the view of affirmative action as a racial preference or reverse discrimination? No.
Chief Justice Roberts’s opinion also treated affirmative action as a racial preference. Indeed, Chief Justice Roberts explicitly employed the term “racial preference” to describe affirmative action.[114] Moreover, early in his opinion, the Chief Justice pitted affirmative action against merit, a move that perpetuated the preference framing of the policy. According to Chief Justice Roberts, “[g]aining admission to Harvard is . . . no easy feat. It can depend on having excellent grades, glowing recommendation letters, or overcoming significant adversity. . . . It can also depend on your race.”[115] Finally, Chief Justice Roberts was adamant that affirmative action disadvantages White and Asian American students.[116] That understanding of affirmative action routinely travels alongside the claim that affirmative action is a racial preference.[117]
5. Did the Powell opinion require plaintiffs in affirmative action cases to prove that they would have been admitted but for the use of affirmative action? No.
In Chief Justice Roberts’s view, it is “obvious” that affirmative action programs disadvantage White and Asian American applicants.[118] Even though the underlying data did not definitively show there was a racial disadvantage,[119] Chief Justice Roberts, echoing Justice Powell in Bakke, reverted to a narrative of White victimization. Chief Justice Roberts did not require individual plaintiffs to demonstrate that they would have been admitted but for affirmative action.
6. Did Justice Powell’s opinion accept societal discrimination as a “compelling” justification for affirmative action? No.
Chief Justice Roberts affirmed Justice Powell’s reasoning on this point. He noted that Justice Powell rejected the idea that societal discrimination can function as a compelling justification for affirmative action and indicated that “[t]he Court soon adopted Justice Powell’s analysis as its own.”[120] Consequently, “[i]n the years after Bakke, the Court repeatedly held that ameliorating societal discrimination does not constitute a compelling interest that justifies race-based state action.”[121]
7. Did the Powell opinion accept countering the underrepresentation of students of color in medical school as a “compelling” justification for affirmative action? No.
In SFFA, Chief Justice Roberts explicitly referenced Justice Powell’s engagement of this question to likewise conclude that countering underrepresentation cannot serve as a compelling justification for affirmative action.[122]
8. Did Justice Powell’s opinion accept the delivery of medical services to under-served populations as a “compelling” justification for affirmative action? No.
Justice Powell left open the possibility that delivery of medical services to underserved populations could amount to a compelling justification for affirmative action but reasoned that the medical school had provided no empirical support for its claim that its affirmative action program would have this effect. Chief Justice Roberts in SFFA turned directly to Justice Powell’s Bakke opinion to replicate that answer.[123]
9. Did Justice Powell’s opinion treat affirmative action’s goal of racial inclusion as aligned with the values and normative principles of Brown v. Board of Education? No.
And neither did Chief Justice Roberts. Indeed, the Chief Justice referred to Brown several times in his opinion, and each time his goal was not only to position Brown against affirmative action but also to align affirmative action with the invidious discrimination at issue in cases like Strauder v. West Virginia,[124] Shelley v. Kraemer,[125] Korematsu v. United States,[126] and Plessy v. Ferguson.[127] These are cases that Justice Powell himself invoked in Bakke to render affirmative action constitutionally suspect.[128] In a striking portion of his opinion, Chief Justice Robert wrote:
While the dissent would certainly not permit university programs that discriminated against [B]lack and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “inherently unequal,” said Brown . . . It depends, says the dissent.[129]
For Chief Justice Roberts, affirmative action programs are tantamount to Jim Crow segregation, an idea that grows out of the race-per-se-is-bad equal protection landscape Justice Powell’s Bakke opinion helped to create.
10. Did Justice Powell’s opinion assume that, but for historical and contemporary racial inequality, there would be no difference in the incoming credentials of White and Black students? No.
Nor did Chief Justice Roberts. The Chief Justice seemed to acquiesce in Justice Powell’s view that the racial disparities in incoming credentials between Black and White students, whatever their cause may be, do not justify “discriminating” against White applicants. White applicants are not to blame.[130] They are “innocent.”[131] Accordingly, White students should not bear the burdens affirmative action imposes.[132]
Chief Justice Robert’s reasoning along the preceding lines did not go unchallenged. In some ways, Justice Jackson’s dissent is a forceful repudiation of this thinking. The point of departure for Justice Jackson’s dissent was a concise history of structural racism against African Americans. This history, she wrote, explains the “[g]ulf-sized race-based gaps [that] exist with respect to the health, wealth, and well-being of American citizens.”[133] One could easily extend her analysis to apply to racial disparities in formal academic credentials. The point is that none of the material conditions of race that Justice Jackson attributed to the “[g]ulf-sized race-based gaps” in society shaped Chief Justice Roberts’s doctrinal analysis.
11. Did Justice Powell’s opinion accept racial diversity standing alone as a “compelling” justification for affirmative action? No.
That “no” extends to Chief Justice Roberts’s opinion as well. In fact, and as we discuss next, the Chief Justice rejected the diversity rationale altogether, at least as that rationale has been mobilized in prior affirmative action cases.
12. Did Justice Powell’s opinion accept racial diversity in conjunction with other forms of diversity as a “compelling” justification for affirmative action? Yes.
This is the “yes” that Chief Justice Roberts turned into a “no.” Building on precedents spanning forty-five years, Harvard and the University of North Carolina (UNC) proffered a diversity rationale that included the following interests: “training future leaders in the public and private sectors”; “better educating its students through diversity”; “producing new knowledge stemming from diverse outlooks”; “preparing engaged and productive citizens and leaders”; and “enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes.”[134] Chief Justice Roberts rejected these objectives, asserting that they were “inescapably imponderable” and “not sufficiently coherent for purposes of strict scrutiny,”[135] and further concluded that there was no “meaningful connection between the means [universities] employ and the goals they pursue.”[136] According to Chief Justice Roberts, any compelling interest in the context of affirmative action must be ‘“sufficiently measurable to permit judicial [review]’ under the rubric of strict scrutiny.”[137]
It would be mistaken to conclude that because Justice Powell endorsed the diversity rationale, the Chief Justice’s rejection of it situates SFFA in opposition to or outside of the racial logics of Powell’s Bakke opinion. Chief Justice Roberts’s critique of the diversity rationale grew out the very doctrinal context that kept that rationale alive: Justice Powell’s Bakke opinion. In jettisoning diversity as a compelling predicate for affirmative action, the Chief Justice drew on Justice Powell’s overall discomfort with affirmative action, including, for example, by referencing Justice Powell’s argument that “[r]acial and ethnic distinctions of any sort are inherently suspect.”[138] Moreover, Chief Justice Roberts not only implied that the diversity rationale is “amorphous,”[139] the very term that Justice Powell used to dismiss remedying societal discrimination,[140] but also cosigned Justice Powell’s view that “there are serious problems of justice connected with the idea of [racial] preference itself.”[141] Thus, although Justice Powell kept affirmative action alive by rendering diversity a compelling justification for the policy, the conflicted way in which he did so was a resource for Chief Justice Roberts to repudiate the rationale.
13. Did Justice Powell’s opinion accept quotas as a “narrowly tailored” means to pursue diversity? No.
Chief Justice Roberts approvingly restated that conclusion, quoting from Justice Powell’s Bakke opinion and Grutter.[142]
* * *
At this point in our analysis, two points deserve emphasis. The first focuses on Bakke and the second on SFFA. With respect to Bakke, one way to appreciate why we frame that case as a loss is to count the number of “nos” to the preceding questions. They total twelve. The list includes only one “yes”—racial diversity as a compelling state interest for affirmative action when it is combined with other forms of diversity.
With respect to SFFA, the point to note is that Chief Justice Roberts reproduced the twelve “nos” we attribute to Justice Powell’s opinion and added another—namely, that diversity is not a compelling interest for affirmative action. But even here, the Chief Justice drew on Justice Powell’s reasoning in Bakke, employing Justice Powell’s overall criticisms of affirmative action, much of his rhetoric, and the constitutionally suspect status he assigned to the policy.[143] The connections this Part draws between Justice Powell’s Bakke opinion and the reasoning and outcome of SFFA are why we assert that, at least to some extent, SFFA is Bakke’s chickens coming home to roost.
To repeat, we are not saying that Justice Powell’s opinion caused SFFA. After all, and as we noted earlier, Justice Powell kept affirmative action alive. And so did Grutter, the case on which the Chief Justice relied to impose a temporal requirement on affirmative plans—namely, that they must have a “logical end point.”[144] It is beyond the scope of this Essay to challenge Chief Justice Roberts’s interpretation of Grutter, though one of us has written a related essay demonstrating how Chief Justice Roberts distorted the key precedents.[145] The basic claim there is that even though Chief Justice Roberts claimed to enforce Bakke, Grutter, and Fisher, he quietly overturned important aspects of their holdings. At the same time, the Chief Justice did not overrule those cases altogether.[146] We will elaborate on that point in the conclusion. We invoke Grutter here less to interrogate whether Chief Justice Roberts overruled that case and more to be clear that we recognize that Justice O’Connor’s opinion in Grutter, and not just Justice Powell’s opinion in Bakke, occupied significant space in Chief Justice Roberts’ analysis as well.[147]
Still, our hope is that as scholars continue to raise questions about the Chief Justice’s treatment of Grutter, they do not elide the role Justice Powell’s opinion in Bakke played in setting the stage for the reasoning and outcome of SFFA. The Chief Justice himself recognized just how much Powell’s Bakke opinion was on his side. According to Chief Justice Roberts, “[t]here is a reason the principal dissent must invoke Justice Marshall’s partial dissent in Bakke nearly a dozen times while mentioning Justice Powell’s controlling opinion barely once (Justice Jackson’s opinion ignores Justice Powell altogether).”[148]
The Chief Justice went on to say that “the dissents want that law to be different. They are entitled to that desire. But they surely cannot claim the mantle of stare decisis while pursuing it.”[149] Again, we are not saying that the Chief Justice got the law entirely right. Our point is that by the time affirmative action got to the Supreme Court in SFFA, the policy was on the ropes. And its precarious status in that regard derived in significant part from Justice Powell’s Bakke opinion.
III. The Bakke Losses: Justice Sotomayor’s Dissent
A final way to appreciate why we are framing Bakke as a loss pertains to Justice Sotomayor’s treatment of that case and the broader affirmative action case law. Though we are sympathetic to the normative impulses that drive much of Justice Sotomayor’s opinion, her reframing of Bakke, Grutter, and Fisher as antiracist bulwarks concealed the reality that, in many ways, Bakke represented a failure for progressive race politics, as Part II described. That Justice Sotomayor felt compelled to reimagine Bakke as an antiracist case is further evidence that Bakke was a loss.
Before we describe precisely how Justice Sotomayor reimagined Bakke, we would be remiss not to foreground the structural approach to race that underwrites her opinion. From our vantage point, it is precisely that approach that should be, but in fact is not, the point of departure for affirmative action jurisprudence and equal protection doctrine more generally. Consider the sampling of quotes we have excerpted from Justice Sotomayor’s dissent below. As you read them, ask yourself whether they align with Justice Powell’s jurisprudential views about race and vision of equal protection.
· “The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality. The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind.”[150]
· “[The majority opinion] 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 Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education . . . .”[151]
· “From Brown to Fisher, this Court’s cases have sought to equalize educational opportunity in a society structured by racial segregation and to advance the Fourteenth Amendment’s vision of an America where racially integrated schools guarantee students of all races the equal protection of the laws.”[152]
· “Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgement of inequality.”[153]
· “Moreover, in ordering the admission of Black children to all-white schools ‘with all deliberate speed’ in Brown v. Board of Education . . . this Court did not decide that the Black children should receive an ‘advantag[e] . . . at the expense of’ white children. It simply enforced the Equal Protection Clause by leveling the playing field.”[154]
· “The majority’s true objection appears to be that a limited use of race in college admissions does, in fact, achieve what it is designed to achieve: It helps equalize opportunity and advances respondents’ objectives by increasing the number of underrepresented racial minorities on college campuses, particularly Black and Latino students. This is unacceptable, the Court says, because racial groups that are not underrepresented ‘would be admitted in greater numbers’ without these policies. Reduced to its simplest terms, the Court’s conclusion is that an increase in the representation of racial minorities at institutions of higher learning that were historically reserved for white Americans is an unfair and repugnant outcome that offends the Equal Protection Clause. It provides a license to discriminate against white Americans, the Court says, which requires the courts and state actors to ‘pic[k] the right races to benefit.’
· “Nothing in the Fourteenth Amendment or its history supports the Court’s shocking proposition, which echoes arguments made by opponents of Reconstruction-era laws and this Court’s decision in Brown. In a society where opportunity is dispensed along racial lines, racial equality cannot be achieved without making room for underrepresented groups that for far too long were denied admission through the force of law . . . .”[155]
In our view, Justice Powell would not, in a jurisprudential sense, have endorsed any of the foregoing views.[156] In other words, while the ideas in the foregoing quotes form a core part of Justice Sotomayor’s dissent, they have virtually no presence in the jurisprudence she cites as precedent for her opinion.
Moreover, it’s hard to imagine Justice Powell citing to Erika Wilsons’s Monopolizing Whiteness,[157] Richard Rothstein’s The Color of Law,[158] Douglas Blackmon’s Slavery by Another Name,[159] and Elise Boddie’s The Indignities of Colorblindness.[160] Indeed, our analysis of Justice Powell’s opinion suggests that all of the scholarly sources that he cited were written by White men.[161] Not only did Justice Powell expressly ground his opinion in the need to protect “innocent” White people, but he formed his views in an echo chamber of opinions by precisely the group that is perceived to be the quintessential victims of “reverse discrimination”: White men.[162] More generally, Justice Powell depicted White people as vulnerable to racial discrimination and argued that courts could not arbitrate competing claims of discrimination between various ethnic groups.[163]
Boiled down to their essence, the preceding quotes from Justice Sotomayor’s dissent reflect the idea not simply that the Equal Protection Clause permits affirmative action but arguably that it might require affirmative action. Justice Powell did not share anything close to that view. In numerous ways, he made clear that the Equal Protection Clause barely tolerates affirmative action, not to achieve substantive racial equality or to desegregate American institutions and society more generally but rather to advance racial diversity.[164]
It bears repeating that the conception of diversity Justice Powell propounded was decidedly thin.[165] Justice Powell’s diversity rationale required university officials to treat racial diversity not only as one form of diversity among others but also as a deliverable that all students, regardless of race, could provide.[166] Put differently, in Justice Powell’s opinion, diversity as a “plus factor” was not narrowly tailored to concerns about racial disadvantage or marginalization. It was a free-floating justification that could map onto anything and anyone. In the eyes of Justice Powell (and later Justice O’Connor in Grutter), playing the tuba, being raised on a farm, or being Italian American may potentially be as rich in “diversity” as being African American or Latine.[167] One would never discern this racism-avoidant dimension of the diversity rationale from Justice Sotomayor’s treatment of Bakke.
Moreover, Justice Sotomayor was unequivocal in her framing of Bakke, Grutter, and Fisher as natural extensions of Brown’s antiracist commitments.[168] According to Sotomayor: “For 45 years, the Court extended Brown’s transformative legacy to the context of higher education, allowing colleges and universities to consider race in a limited way and for the limited purpose of promoting the important benefits of racial diversity.”[169] Later in her dissent, she argued: “Bakke, Grutter, and Fisher are an extension of Brown’s legacy.”[170]
The meaning of Brown of course is subject to contestation.[171] And as we suggested earlier, there is broad literature suggesting that Brown should have articulated a more capacious conceptualization of racial equality. Yet Brown contained a clear denunciation of White supremacy,[172] which the affirmative action cases did not engage. Justice Powell’s opinion in Bakke and the majority opinions in Grutter and Fisher all sidestepped White supremacy and structural racism more generally in favor of the concept of “diversity.” And with respect to Bakke specifically, recall that Justice Powell positioned Black applicants as privileged beneficiaries of a policy that discriminated against “innocent” White applicants.[173] In fact, it was against the backdrop of that “reverse discrimination” conceptualization of affirmative action that Justice Powell described the policy as inconsistent with (not an extension of) Brown. According to Powell:
Petitioner urges us to adopt for the first time a more restrictive view of the Equal Protection Clause and hold that discrimination against members of the white “majority” cannot be suspect if its purpose can be characterized as “benign.” The clock of our liberties, however, cannot be turned back to 1868. Brown v. Board of Education . . . accord, Loving v. Virginia. It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others.[174]
Thus, when Justice Sotomayor chastised Chief Justice Roberts on the view that “[t]he Court’s recharacterization of Brown is nothing but revisionist history[,]”[175] her argument applied to Bakke as well. There is not a single line in Powell’s Bakke opinion that supports the view that affirmative action is to Black people today what Brown was to them in 1954. In multiple places in his opinion, Justice Powell explicitly refused to conceive of affirmative action as a remedial project. Instead, he viewed it as a form of racial discrimination that universities were permitted to practice to advance diversity.[176] Tellingly, Justice Powell cited Alexander Bickel’s The Morality of Consent approvingly for the following proposition:
The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society. Now this is to be unlearned and we are told that this is not a matter of fundamental principle but only a matter of whose ox is gored. Those for whom racial equality was demanded are to be more equal than others. Having found support in the Constitution for equality, they now claim support for inequality under the same Constitution.[177]
In short, while Justice Powell kept affirmative action alive, he significantly undermined (if not eliminated) the policy’s antisubordination standing and legalized the conception of affirmative action as both a racial preference and a form of reverse discrimination against White people. Justice Sotomayor overlooked these shortcomings, giving more credence to Justice Powell’s opinion as an antiracist precedent than it merited.
At the same time, Justice Sotomayor magnified Justice Marshall’s opinion. She cited Justice Marshall’s opinion twice as many times (ten) than she cited Justice Powell’s (five).[178] As previously mentioned, Chief Justice Roberts criticized her on this point as well.[179] Justice Sotomayor’s treatment of Justice Marshall’s opinion is important to note because Justice Marshall’s opinion—which was joined by no other Justice[180]—was the most unapologetically antiracist. That is why we quoted him at length in Part II. Justice Marshall squarely relied on the remedial rationale for affirmative action—that is, that affirmative action is justified as a remedy for societal and historical discrimination against Black people and other underrepresented minorities.[181] Justice Marshall barely engaged with Justice Powell’s opinion. Indeed, Justice Marshall’s opinion did not even utter the word “diversity” or “diverse,” concepts that were at the heart of Justice Powell’s weak defense of affirmative action. This was no accident. According to Justice Brennan, Justice Marshall was “livid” with Justice Powell’s opinion and perceived it to be “racist.”[182]
Justice Sotomayor glossed the divide between Justice Powell and Justice Marshall by stating: “Justice Marshall’s view was that Bakke’s holding should have been even more protective of race-conscious college admissions programs in light of the remedial purpose of the Fourteenth Amendment and the legacy of racial inequality in our society.”[183] While this is accurate, it downplays the tension between Justice Marshall’s and Justice Powell’s opinions, including that Justice Marshall would not have applied strict scrutiny to affirmative action to begin with. Which is to say, unlike Justice Powell, Justice Marshall did not take the view that affirmative action was highly suspect. Indeed, had Justice Marshall’s approach to affirmative action carried the day, the trajectory of affirmative action jurisprudence—and other forms of racial remediation—might have looked quite different, and Chief Justice Roberts would likely have had a more difficult time ruling as he did in SFFA. In short, in contrast to Justice Powell, Justice Marshall fully embraced affirmative action, demonstrating why Justice Sotomayor repeatedly invoked his partial dissent over Justice Powell’s controlling opinion to characterize Bakke as a safeguard for affirmative action policies. Her reliance on the dissent rather than the controlling opinion further supports our claim that Bakke was a loss.
Though our focus thus far has been on Justice Sotomayor’s treatment of Bakke and its progeny, it is important that we discuss her response to the Chief Justice’s and Justice Kavanaugh’s sense that affirmative action must have an end point.[184] While this issue is more about the pathway Grutter created to SFFA than the pathway Bakke created, it implicates our argument that Sotomayor invested Bakke with more antiracist bite than was warranted.
Justice Sotomayor rebuked Chief Justice Roberts and Justice Kavanaugh for reading Grutter to have a temporal requirement.[185] The matter was debated in Grutter itself. The majority opinion declared:
It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.[186]
While Justice Ginsburg and Justice Breyer joined the majority opinion, they resisted Justice O’Connor’s suggestion of a twenty-five-year deadline for affirmative action.[187] By contrast, Justices Scalia and Thomas treated this time limitation as part of the Court’s holding.[188] Justice O’Connor’s decision to float an expiration date for affirmative action mirrors Justice Powell’s ambivalence towards the policy, which rippled throughout his Bakke opinion.[189] The Grutter majority thus followed Bakke in setting the stage for a future Court to declare that Grutter’s holding had expired.
In arguing that Grutter was on her side, Justice Sotomayor had to overlook the time bomb that Justice O’Connor had planted in her opinion. Justice Sotomayor chided Justice Kavanaugh for his reading of Grutter: “Speculating about a day when consideration of race will become unnecessary is arbitrary at best and frivolous at worst. There is no constitutional duty to engage in that type of shallow guesswork.”[190] Justice Sotomayor denied that the expiration issue was baked into Grutter: “That reading of Grutter [by Justice Kavanaugh] trivializes the Court’s precedent by reducing it to an exercise in managing academic calendars. Grutter is no such thing.”[191] Yet her argument is as much with Grutter and Justice O’Connor as it is with Justice Kavanaugh, which is another way of saying that Justice Sotomayor understated the degree to which Grutter (relying heavily on Bakke) provided a pathway to SFFA.
We are not saying, to be clear, that the Grutter “time bomb” was part of the Court’s holding. In our view, it was not. The point is that Grutter’s language of twenty-five years, and its other references to temporality, provided a meaningful foundation on which Chief Justice Roberts and Justice Kavanaugh could build their case that Grutter articulated an expiration date for affirmative action.
In arguing that Justice Sotomayor sought to infuse Bakke and its progeny with antiracist content those cases do not have,[192] we do not mean to suggest that Justice Sotomayor was evidencing naivete about the Bakke opinion. Our sense is that she was navigating the disjuncture between the doctrinal landscape she inherited and the vision of equal protection she endorsed. She was making the most of what, juridically speaking, she had. In that regard, one might reasonably ask: If Justice Powell can effectively turn Brown against itself and against a policy (affirmative action) that seeks to advance Black aspirations for educational access, why shouldn’t Justice Sotomayor adopt that very same strategy—namely, turn Bakke against itself to advance a substantive approach to race that would affirmatively support, rather than apologetically tolerate, affirmative action? We understand that rhetorical impulse (to wit, that Justice Sotomayor should do to Bakke what Justice Powell did to Brown).
But there’s another approach Justice Sotomayor might have taken that has the potential both to ground a robust conception of racial justice and to put Bakke in its place in a disciplinary and doctrinal sense. That approach would include the following four features:
1. A substantive and antisubordination vision of equal protection. As we have already suggested, we think Justice Sotomayor’s opinion has all the ingredients for that articulation.[193]
2. An application of that vision to SFFA. Here, Justice Sotomayor would show that under an antisubordination approach to equal protection, the SFFA case is easy: Affirmative action is not a vehicle for racially subordinating any group. Rather, it helps to level the admissions playing field for historically marginalized groups and ensure that educational institutions not only are integrated, but also have inclusive and non-stereotype-threatening institutional cultures.
3. An indication that Bakke helped to move the Court away from that substantive vision of equal protection. At this point in the opinion, Justice Sotomayor would stress that very early in the trajectory of civil rights litigation, the Court began to retreat from its commitment to racial justice. She would then situate Bakke in the context of that story as perpetuating the losses this Essay describes, including the fact that Justice Powell applied strict scrutiny to even benign racial classifications and dismissed concerns about societal discrimination. Her analysis would explain why Bakke’s vision of equal protection is wrong and inconsistent with Brown and Loving. She would further contend that time has borne out the fact that Bakke’s conception of equal protection is wrong, evidenced not only by the vast racial disparities that continue to structure virtually every dimension of social life, but also by the degree to which many schools and neighborhoods remain racially segregated. In other words, she would emphasize that under the current, formalistic conception of equal protection doctrine, racially marginalized people are unequally protected by the very constitutional provision that promises them equal protection.
4. A clear articulation of the door that Bakke left open for affirmative action. The final move Justice Sotomayor would make is to indicate that while Bakke was a retreat from an equal protection jurisprudence that grappled with structural forms of racial inequality, it was unequivocal that colleges and universities could pursue racial diversity under specified conditions. Subsequent Supreme Court cases affirmed and elaborated those conditions, and colleges and universities have been operationalizing them for over fifty years. This limited way of taking race into account is precisely what Harvard and UNC were doing. The Court’s decision in SFFA to take that away was inconsistent with longstanding precedent.[194]
One advantage of the approach we are proposing is that it would educate the public both about a particular vision of equal protection that the Court long ago abandoned and about the impoverished juridical regime under which we have been fighting for racial justice. Another advantage of our approach is that it would create conditions of possibility for liberal Justices to recreate precisely the dynamic SFFA reflects—one through which conservative Justices dissented their way into law.[195] In articulating that view, we are not saying that the pathway for that dissenting-into-law dynamic was entirely discursive. Clearly, SFFA is also a story about the reconfiguration of the Court and the fact that the Court’s makeup has consequences. But it is also fair to say that by the time SFFA landed at the Supreme Court, conservative Justices had built an entire intellectual infrastructure to effectuate precisely what SFFA accomplished.
No such intellectual infrastructure exists on the pro-affirmative action jurisprudential landscape. Although some liberal Justices have tried to nudge the doctrine to the left,[196] the defense of affirmative action by Justices on the Supreme Court has largely (though not entirely) been on the strict scrutiny, compelling interest, and narrow tailoring terms Justice Powell set out in his Bakke opinion. One sees nothing as robust as Justice Marshall’s defense of affirmative action in the Grutter and Fisher era of pro-affirmative action jurisprudence. Accordingly, Justice Sotomayor had the opportunity to both defend affirmative action under the Bakke/Grutter framework and articulate a conception of equal protection that explained why that framework is too narrow. We think it was a mistake for her to bootstrap antisubordination concerns onto an anticlassification regime. Doing so obscured not only the civil rights ground that we have lost, but also the antisubordination vision of the Equal Protection Clause for which we should still fight.
As scholars of Critical Race Theory, we share many of Justice Sotomayor’s normative views about race and equal protection. Indeed, we want to be clear to repeat that we endorse her structural approach to race and her insistence on not treating racism as a thing of the past. We thought it particularly important that Justice Sotomayor challenged the supposed tension between affirmative action and merit, a tension that traffics in what we earlier called a “competence suspicion” about the beneficiaries of affirmative action, especially Black people. In contesting that tension, Justice Sotomayor both repudiated the so-called “mismatch” theory of affirmative action and named herself and Justices Jackson and Thomas as beneficiaries of affirmative action. In a remarkable passage in her dissent, Justice Sotomayor writes:
“[M]any social scientists have studied the impact of elite educational institutions on student outcomes, and have found, among other things, that attending a more selective school is associated with higher graduation rates and higher earnings for [underrepresented minority] students—conclusions directly contrary to mismatch.” This extensive body of research is supported by the most obvious data point available to this institution today: The three Justices of color on this Court graduated from elite universities and law schools with race-conscious admissions programs, and achieved successful legal careers, despite having different educational backgrounds than their peers. A discredited hypothesis that the Court previously rejected is no reason to overrule precedent.[197]
In short, we applaud the overall approach Justice Sotomayor took with respect to race. Our point is that her normative sensibilities and vision of equal protection lack a firm footing in Justice Powell’s opinion in Bakke and the cases that followed it. There is a distinction between Justice Powell’s and Justice O’Connor’s views about race, on the one hand, and Justice Sotomayor’s account of their respective opinions, on the other. Neither Bakke nor Grutter authorized affirmative action based on the need to combat racism and White supremacy. Both articulated their diversity rationale on the view that every student, regardless of race and their relationship to racial inequality, could contribute diversity to college campuses.
Justice Sotomayor’s effort to repurpose Bakke from a case that is suspicious of affirmative action to a precedent that, like Brown, championed racial equality, and her repeated invocations of Justice Marshall’s partial dissent, provide further support for our claim that, from a civil rights perspective, Bakke included several losses.
Conclusion
Our project in this Essay was to illustrate how Justice Powell’s opinion in Bakke undermined the constitutional standing of affirmative action in ways that helped to pave the way for SFFA. At the same time, we have been clear to say that Bakke did not cause SFFA. Notwithstanding the losses we attribute to Bakke, the Court could have employed Justice Powell’s opinion to rule in favor of Harvard and UNC. Doing so would not have required the Court to abandon strict scrutiny, embrace an antisubordination approach to racial equality, or endorse the view that societal discrimination is a compelling interest for affirmative action. The Court could have preserved Harvard-style affirmative action programs precisely the way Justice Powell did in Bakke and Justice O’Connor did in Grutter—namely, by continuing to frame affirmative action as a “racial preference” and a form of “reverse discrimination,” continuing to render the policy constitutionally suspect, continuing to subject affirmative action to strict scrutiny, continuing to describe White people as innocent victims of the policy, continuing to treat race as a mere subset of “diversity,” and continuing to reject quota-like means of realizing the goals affirmative action seeks to effectuate. Our discussion of what Justice Sotomayor’s dissent said—and might have said—provides a robust vision of an antiracist alternative to Bakke and Grutter’s bare tolerance of affirmative action. But the point is that there was plenty of doctrinal space for Chief Justice Roberts to keep Havard-style affirmative action policies alive on precisely the terms on which they have, since Bakke, been juridically breathing.
Although SFFA magnified Bakke’s losses and imposed additional constraints on universities, it also left open an important window of possibilities.[198] First, near the end of his majority opinion, Chief Justice Roberts stated that the parties and the Justices agreed that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”[199] One of us has written an extensive analysis of this essay exception.[200] The other author wrote an article arguing that state laws banning racial “preferences” are themselves racial preferences and would harm students of color if they were interpreted to ban those students from writing college essays discussing how race had impacted their lives.[201]
Here, we observe that the open, discretionary nature of SFFA’s essay exception gives universities a choice between promoting diversity and recognizing precisely what Justice Powell’s opinion rejected as a compelling state interest: “societal discrimination.” To better appreciate the nature of this choice, recall that SFFA permits universities to give weight to student essays that discuss race as “discrimination, inspiration, or otherwise.”[202] Sonja Starr’s analysis of a considerable sample of college admission essay prompts from 2021–2024 shows that many colleges included diversity or identity questions that were broad enough to apply to White students.[203] This is wholly consistent with Bakke/Grutter-style affirmative action. These prompts did not specifically reference race or racial discrimination yet were capacious enough to permit a student to engage those topics if they so desired.
Starr also found that a significant subset of colleges asked the student to write about an experience with “adversity.”[204] Whether essay questions focus on adversity generally or on discrimination as a subset of adversity, they can effectively elicit stories of racial discrimination. Accordingly, such prompts allow colleges to consider issues of racial discrimination that Bakke and its progeny had largely sidelined in favor of Justice Powell’s thin conception of “diversity.” Indeed, Starr finds that after SFFA, some colleges refined their prompts to focus on racial justice.[205] Starr’s analysis suggests, perhaps surprisingly, that SFFA may free schools from the diversity rationale and allow them—through the vehicle of student essays—to home in on, or “narrowly tailor,” their admissions review to center racial justice.
As we have argued, a major problem with Bakke was Justice Powell’s dismissal of “societal” discrimination and emphasis on “identified discrimination.”[206] Yet under SFFA, student stories of discrimination (which have not been vetted or confirmed as “identified discrimination” through any judicial process)[207] may re-enter the admissions process and provide opportunities for students of color to be admitted.[208] We think colleges should reflect on their values and make intentional decisions about whether they want to adhere to a diversity frame, which cloaks questions of discrimination and racial inequality, or more deliberately and transparently foreground the importance of reckoning with both.
That colleges may, consistent with SFFA, incorporate race into their admissions decisions brings us back to the central claim we advance in this Essay—namely that, at least to some extent, SFFA is Bakke’s chickens coming home to roost. That is because like Justice Powell’s opinion in Bakke, Chief Justice Roberts’s opinion in SFFA both critiques and legitimizes the employment of race consciousness and traffics in and departs from the ideology of “colorblindness.”[209] On the one hand, SFFA and Bakke express the view that affirmative action is presumptively problematic because it violates the principle of colorblindness. On the other hand, both opinions expressly permit schools to engage in race consciousness: Justice Powell does so through his embrace of the diversity rationale, and the Chief Justice does so through the essay exception.[210] That SFFA both trades on and repudiates race consciousness, and employs and violates the Supreme Court’s conception of colorblindness, is another sense in which SFFA is Bakke’s chickens coming home to roost.
The final point we want to make about Bakke pertains to a “chicken” in Justice Powell’s reasoning that has not come home to roost—a remedial justification for affirmative action that Justice Powell buried in a footnote and that Chief Justice Roberts completely ignores. In footnote forty-three, Justice Powell suggested that “[r]acial classifications in admissions conceivably could serve a fifth purpose”: “fair appraisal of each individual’s academic promise in the light of some cultural bias in grading or testing procedures.”[211] While in much of Justice Powell’s opinion he described affirmative action as a “preference,” in footnote forty-three he maintained that if “race and ethnic background were considered only to the extent of curing established inaccuracies in predicting academic performance, it might be argued that [affirmative action is] no ‘preference’ at all.”[212] One of us has written about this footnote and noted that, for the most part, both scholars and courts have ignored it.[213] Given what the now-sprawling literatures on implicit bias and stereotype threat[214] teach about the subtle but significant ways in which race can produce “inaccuracies in predicting academic performance,” both scholars and litigators should pay closer attention to footnote forty-three going forward. That engagement could create conditions of possibility for that chicken of Bakke—the defense of affirmative action in footnote forty-three—to come home to roost.
Copyright © 2025 Devon W. Carbado* & Russell K. Robinson**
* Devon W. Carbado is the Elihu Root Professor of Law at NYU School of Law and a Distinguished Research Professor of Law at UCLA School of Law.
** Russell K. Robinson is the Walter Perry Johnson Professor of Law & Faculty Director, Center on Race, Sexuality & Culture, UC Berkeley School of Law.
For conversations about or comments on this article, we thank Maggie Blackhawk, Richard Brooks, Yun-chien Chang, Kimberlé Crenshaw, Mike Dorf, Jessica Eaglin, Afroditi Giovanopoulou, Risa Goluboff, Valerie Hans, Cheryl Harris, Jill Hasday, Michael Heise, Sheri Johnson, Trevor Morrison, Melissa Murray, Brian Richardson, Chris Sprigman, Chantal Thomas, and Kenji Yoshino. We also appreciate the engagement we received from faculty colloquia or symposia at UC Berkeley School of Law, Cornell Law School, NYU School of Law, The Ohio State University Moritz College of Law, University of Texas Law School, and The University of Minnesota Law School.
[1]. See, e.g., Robert M. O’Neil, Preferential Admissions: Equalizing the Access of Minority Groups to Higher Education, 80 Yale L.J. 699, 703, 705 (1971) (arguing in favor of affirmative action by comparing it to universities’ longstanding efforts to recruit students with diverse skillsets); Richard A. Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 Sup. Ct. Rev. 1, 7–15 (1974) (criticizing the diversity rationale for affirmative action).
[2]. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 315, 320 (1978).
[3]. See Grutter v. Bollinger, 539 U.S. 306, 324–25 (2003).
[4]. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023) [hereinafter SFFA].
[5]. Because universities have generally eschewed identifying their historical complicity in racism, they have not invoked “identified discrimination” as a basis for their affirmative action plans. See Jonathan P. Feingold, Colorblind Capture, 102 B.U. L. Rev. 1949, 1987 (2022).
[6]. See SFFA, 600 U.S. at 332 (Sotomayor, J., dissenting).
[7]. See also Theodore M. Shaw, Speech, From Brown to Grutter: The Legal Struggle for Racial Equality, 16 Wash. U. J.L. & Pol’y 43, 55 (2004) (“Bakke was a loss for African-Americans” because, among other reasons, “the Court completely ignored the history of the Fourteenth Amendment and refused to acknowledge that its original purpose was to bring the former slaves into all of the benefits of full citizenship.”).
[8]. E.g., Letter from Kris W. Kobach, Kan. Att’y Gen., Jonathan Skrmetti, Tenn. Att’y Gen., Rep. Steve Marshall, Ala. Att’y Gen., Tim Griffin, Ark. Att’y Gen., Todd Rokita, Ind. Att’y Gen., Brenna Bird, Iowa Att’y Gen., Daniel Cameron, Ky. Att’y Gen., Lynn Fitch, Miss. Att’y Gen., Austin Knudsen, Mont. Att’y Gen., Mike Hilgers, Neb. Att’y Gen., Alan Wilson, S.C. Att’y Gen. & Patrick Morrisey, W. Va. Att’y Gen. to Fortune 100 CEOs (July 13, 2023), https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2023/pr23-27-letter.pdf [https://perma.cc/KN2G-G532]; Christopher D. Hampson & Elise Bernlohr Maizel, DEI as Cultural Commitment in an Era of Backlash, 43 ABI J. 26 (2024); Michael Porter, Understand Impact of Legal Landscape on DEI Efforts, 25 Campus Legal Advisor 3, 3, 14 (2024).
[9]. See Kimberly West-Faulcon, The SFFA v. Harvard Trojan Horse Admissions Lawsuit, 47 Seattle U. L. Rev. 1355, 1356 (2024) (referring to affirmative-action-hostile admissions lawsuits as “modern Trojan horses” with a “distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions . . . . ”).
[10]. See Ian Haney-López, Intentional Blindness, 87 N.Y.U. L. Rev. 1779, 1863–64 (2012) (articulating several doctrinal ways in which equal protection law benefits White litigants and marginalizes the interests of non-White people); Russell K. Robinson, Unequal Protection, 68 Stan. L. Rev. 151, 216 (2016) (arguing that “Justice Kennedy and his conservative brethren are recalibrating equal protection and Title VII law to extend new protections to white plaintiffs and white defendants while simultaneously making it harder for people of color to prevail in race cases”); Reva B. Siegel, Equality Divided, 127 Harv. L. Rev. 1, 2–3 (2013) (suggesting that equal protection doctrine is “divided” in the sense of privileging the equal protection interests of people in the majority over those in the minority).
[11]. On how liberals have acquiesced in the preference framing of affirmative action, see generally Luke Charles Harris & Uma Narayan, Affirmative Action and the Myth of Preferential Treatment: A Transformative Critique of the Terms of the Affirmative Action Debate, 11 Harv. BlackLetter L.J. 1 (1994); see also Introduction, in Critical Race Theory: The Key Writings That Formed the Movement xxix-xx (Kimberlé Crenshaw, Neil Gotanda, Gary Peller & Kendall Thomas eds., 1995) (observing that both liberals and conservatives endorse the preference framing of affirmative action).
[12]. Of course, SFFA also explicitly trades on the idea that affirmative action also harms Asian Americans, a contention that conflates affirmative action with what Jerry Kang has called “negative action.” See generally Jerry Kang, Negative Action Against Asian Americans: The Internal Instability of Dworkin’s Defense of Affirmative Action, 31 Harv. C.R.-C.L. L. Rev. 1 (1996) (distinguishing between affirmative action and negative action). The affirmative action debate regularly weaponizes Asian Americans. See, e.g., Jonathan P. Feingold, SFFA v. Harvard: How Affirmative Action Myths Mask White Bonus, 107 Calif. L. Rev. 707, 709–10 (2019) (noting the common conflation of the attack on Harvard’s affirmative action policy with the claim that Harvard intentionally discriminates against Asian Americans); see generally Nancy Leong, The Misuse of Asian Americans in the Affirmative Action Debate, 64 UCLA L. Rev. Discourse 90 (2016) (explaining some of the ways in which Asian Americans are deployed to undermine and delegitimize affirmative action).
[13]. See, e.g., Russell K. Robinson, The Incoherence of “the Colorblind Constitution,” 113 Calif. L. Rev. 997 (June 2025) (exploring numerous questions raised by SFFA’s exception for essays that discuss racialized experiences); Jonathan P. Feingold, Affirmative Action After SFFA, 48 J. Coll. & U. L. 239, 239 (2023) (“The ruling has spawned considerable confusion regarding a university’s ongoing ability to pursue racial diversity, racial inclusion, and other equality-oriented goals—whether through ‘race-conscious’ or ‘race-neutral’ means.”); Issa Kohler-Hausmann, What Did SFFA Ban? Acting on the Basis of Race and Treating People as Equals, 66 Ariz. L. Rev. 305, 305 (2024) (“The problem is, nobody knows what . . . has been banned by the Court’s decision in Students for Fair Admissions v. Harvard.”); Benjamin Eidelson & Deborah Hellman, Unreflective Disequilibrium: Race-Conscious Admissions After SFFA, 4 Am. J.L. & Equal. 295, 295 (2024) (“The ruling is ambivalent, unsure of its own import, and thus contains the seeds of more than one possible future.”); Kevin Carey, Can College Diversity Survive the End of Affirmative Action?, Vox (June 29, 2023), www.vox.com/scotus/2023/6/29/23767756/affirmative-action-college-admissions-race-sffa-ruling [https://perma.cc/U775-63SU]; Jeffrey S. Lehman, Don’t Misread SFFA v. Harvard, Inside Higher Ed (July 17, 2023), www.insidehighered.com/opinion/views/2023/07/17/dont-misread-sffa-v-harvard-opinion [https://perma.cc/BPG2-GR86]; The Editorial Board, The Supreme Court Turns ‘Equal Protection’ Upside Down, N.Y. Times (June 30, 2023), www.nytimes.com/2023/06/30/opinion/editorials/supreme-court-affirmative-action-decision.html [https://perma.cc/EQ59-AZLH].
[14]. When “a past action, mistake, etc. comes home to roost, it causes problems at a later date, especially when this is expected or seems deserved.” Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/come-home-to-roost [https://perma.cc/95VB-FBH9].
[15]. For a discussion of the various responses to the case by the media, scholars, and other commentators, see Howard Ball, The Bakke Case: Race, Education, and Affirmative Action 141–44 (2000). For an interesting interpretation of Justice Powell’s opinion along the lines that Justice Powell was encouraging institutions to pursue race consciousness through indirect rather than direct means, see generally Yuvraj Joshi, Racial Indirection, 52 U.C. Davis L. Rev. 2495 (2019).
[16]. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 208 (2023).
[17]. See 1 Kings 3:16–28 (Contemporary English).
[18]. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 356–57, 361–62 (1978).
[19]. See Haney-López, supra note 10, at 1826–27 (“Recall that in UJO . . . remedial uses of race did not merit heightened constitutional scrutiny because they lacked an invidious purpose. In utter disregard of this, in Bakke [Justice] Powell proclaimed that every use of race by the government is ‘inherently suspect’ and so automatically warranted the highest level of judicial skepticism.”).
[20]. Bakke, 438 U.S. at 356.
[21]. See id. at 361–62.
[22]. See id.
[23]. Think about what the affirmative action landscape would look like if Justice Powell in Bakke and subsequent Supreme Court cases employed the standard the Court articulated in Morton v. Mancari, a case that involved the constitutionality of an affirmative action program that the Bureau of Indian Affairs administered. See Morton v. Mancari, 417 U.S. 535, 554 (1974). Justice Powell explicitly refused to apply Mancari’s more relaxed standard of review to the Bakke case on the view that “the preference [in Mancari] was not racial at all, but ‘an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to . . . groups . . . whose lives and activities are governed by the BIA in a unique fashion.’” Bakke, 438 U.S. at 304 n.42 (quoting Mancari, 417 U.S. at 554). Had the Mancari standard carried the day in Bakke, not only affirmative action cases but also likely the entire domain of racial equality would read differently, even as it is true that remedial projects on behalf of Indigenous peoples are now under pressure from opponents of affirmative action. See generally Rice v. Cayetano, 528 U.S. 495 (2000); Addie C. Rolnick, The Promise of Mancari: Indian Political Rights as Racial Remedy, 86 N.Y.U. L. Rev. 958 (2011).
[24]. Justice Sandra Day O’Connor’s majority opinion in Adarand Constructors, Inc. v. Pena sought to “dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact.’” 515 U.S. 200, 237 (1995) (quoting Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring in judgment)); see generally Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793 (2006) (providing an empirical analysis of the degree to which “strict in theory” has translated into “fatal in fact”).
[25]. Bakke, 438 U.S. at 295.
[26]. 338 U.S. 1, 11 (1967).
[27]. See Bakke, 438 U.S. at 307.
[28]. See Loving, 338 U.S. at 11 (focusing on white supremacy); see generally Brown v. Bd. Of Education of Topeka, 347 U.S. 483, 494–95 (focusing specifically on racial harms of racial segregation in the context of K-12 education).
[29]. See, e.g., Adarand, 515 U.S. at 204 (examining a federal program that provided highway contracts to disadvantaged businesses).
[30]. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 711 (2007).
[31]. See Shaw v. Reno, 509 U.S. 630, 633 (1993).
[32]. See Ricci v. DeStefano, 557 U.S. 557, 563 (2009).
[33]. See Rice v. Cayetano, 528 U.S. 495, 499 (2000).
[34]. See Shelby Cnty. v. Holder, 570 U.S. 529, 540, 553 (2013) (relying on the racial logics from Bakke that equal protection law should be concerned with “blatant[]” or intentional forms of discrimination and that the Constitution should not be interpreted “to punish for the past; its purpose is to ensure a better future”).
[35]. See Schuette v. Coal. to Def. Affirmative Action, Integration & Immigrant Rts. & Fight for Equal. By Any Means Necessary, 572 U.S. 291, 298 (2014) (considering the question of whether the Michigan state-wide ballot initiative prohibiting affirmative action violated the political process doctrine).
[36]. See McCleskey v. Kemp, 481 U.S. 279, 305–06 (1987).
[37]. Classifications based on sexual orientation would require rational basis “with bite.” See Romer v. Evans, 517 U.S. 620, 631–33 (1996); see also Robinson, supra note 10, at 151. For a critique of this compartmentalized approach to equal protection, see generally Devon W. Carbado & Kimberlé W. Crenshaw, An Intersectional Critique of Tiers of Scrutiny: Beyond “Either/Or” Approaches to Equal Protection, 129 Yale L.J.F. 108 (2019).
[38]. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 299 (1978).
[39]. See id. at 305–06.
[40]. According to Justice Powell, “[i]t may be assumed that in some situations a State’s interest in facilitating the health care of its citizens is sufficiently compelling to support the use of a suspect classification. But there is virtually no evidence in the record indicating that petitioner’s special admissions program is either needed or geared to promote that goal.” Id. at 310. By contrast, there is no constitutional requirement that gender-based interventions, for example, include other forms of diversity.
[41]. See id. at 307–13.
[42]. As Justice Powell explained, “The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Petitioner’s special admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity.” Id. at 315. When the Court evaluated admissions policies that focused on race, as opposed to diversity more generally, it struck them down. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 709–11 (2007).
[43]. See generally Charles R. Lawrence III, Essay, Two Views of the River: A Critique of the Liberal Defense of Affirmative Action, 101 Colum. L. Rev. 928 (2001) (arguing the diversity justification pushed other, more radical substantive defenses to the background); Richard Delgado, Why Universities are Morally Obligated to Strive for Diversity: Restoring the Remedial Rationale for Affirmative Action, 68 U. Colo. L. Rev. 1165 (1997) (arguing that affirmative action should rest on remedial justifications).
[44]. Searches of U.S. law reviews and other academic publications were conducted in HeinOnline and a selection of social sciences databases (ProQuest PAIS, Sociological Abstracts, and Worldwide Political Science Abstracts).
[45]. Searches conducted on June 12, 2020: “diversity racial”~20 OR “diversity race”~20 OR “diversity ethnic”~20 in HeinOnline Law Journal Library; (race OR racial OR ethni*) AND diversity in ProQuest databases).
[46]. See, e.g., Joyce M. Bell & Douglas Hartmann, Diversity in Everyday Discourse: The Cultural Ambiguities and Consequences of “Happy Talk,” 72 Am. Socio. Rev. 895, 895 (2007) (“Everyone in America—school administrators and business leaders, political activists, marketing gurus, and Supreme Court Justices—seems to be using the language of diversity these days.”).
[47]. Bakke, 438 U.S. at 307.
[48]. Id. (emphasis added).
[49]. Id.
[50]. But see Haney-López, supra note 10, at 1825–28 (drawing a connection among colorblindness, the intent standard, and strict scrutiny and implicating Justice Powell in that account).
[51]. See 426 U.S. 229, 240–41 (1976).
[52]. 442 U.S. 256, 279 (1979).
[53]. 481 U.S. 279 (1987).
[54]. Id. at 297.
[55]. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978).
[56]. See 347 U.S. 483, 495 (1954).
[57]. 388 U.S. 1, 7, 11 (1967).
[58]. Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634; Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241; Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437; Civil Rights Act of 1968, Pub. L. No. 90-284, 82 Stat. 73. For details of the legislation, see The Civil Rights Movement and The Second Reconstruction, 1945—1968, U.S. House of Representatives: Hist., Art & Archives, https://history.house.gov/Exhibitions-and-Publications/BAIC/Historical-Essays/Keeping-the-Faith/Civil-Rights-Movement/ [https://perma.cc/K7WQ-664A] (renamed Rights and Representation).
[59]. Cf. Booker T. Washington, Up From Slavery: An Autobiography (1901) (tracing Washington’s journey from slavery to educator from the Civil War to Reconstruction and the Jim Crow Eras).
[60]. Bakke, 438 U.S. at 395–96 (Marshall, J., dissenting).
[61]. See id. at 399–402 (responding to Justice Powell’s arguments).
[62]. See Beverly Daniel Tatum, “Why Are All the Black Kids Sitting Together in the Cafeteria?” And Other Conversations about Race 3 (5th ed. 2003) (“[I]n almost every audience I address, there is someone who will suggest that racism is a thing of the past.”); Margaret M. Zamudio & Francisco Rios, From Traditional to Liberal Racism: Living Racism in the Everyday, 49 Socio. Persps. 483, 484 (2006) (explaining that “the discourse of the colorblind society is . . . further advanced” by “the belief that racism is a ‘thing of the past,’ something ameliorated during the gains of the Civil Rights Movement with the specific policies of integration . . . affirmative action, and the creation of governmental agencies . . . to enforce antidiscrimination legislation.”). The Court also employed that thinking in Shelby Cnty. v. Holder, where it gutted the preclearance requirements of the Voting Rights Act on the view that racism in the context of voting no longer meaningfully characterized the United States landscape. See 570 U.S. 529, 535 (2013).
[63]. See Bakke, 438 U.S. at 297–98 (“[T]here is a measure of inequity in forcing innocent persons in respondent’s position to bear the burdens of redressing grievances not of their making.”); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 505 (1989) (applying Bakke’s distinction between societal discrimination and identified discrimination). For one of the earliest critiques of the framing of affirmative action as a racial preference, see Harris & Narayan, supra note 11, at 1.
[64]. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring) (arguing that there can never be a “compelling interest” in discriminating on the basis of race to “make up” for past discrimination because under our Constitution there can be no “creditor” or “debtor” race).
[65]. 109 U.S. 3 (1883).
[66]. Id. at 9.
[67]. See id. at 24–25.
[68]. Id. at 25. See Mario L. Barnes, Erwin Chemerinsky & Trina Jones, A Post-Race Equal Protection?, 98 Geo. L.J. 967, 973 (2010).
[69]. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 295 (1978) (emphasis added). The pervasive language of “racial preference” overlooks multiple ways in which racial inequality remains baked into facially neutral admissions processes. See, e.g., Feingold, supra note 5, at 1957.
[70]. Bakke, 438 U.S. at 296 n.36 (“No one denies the regrettable fact that there has been societal discrimination in this country against various racial and ethnic groups.”).
[71]. Recall again Justice Powell’s focus on “identifiable” discrimination. See id. at 308 n.44 (emphasizing the importance of “legislative determinations, wholly absent here, that past discrimination had handicapped various minority groups to such an extent that disparate impact could be traced to identifiable instances of past discrimination . . . ”).
[72]. Id. at 296 n.36.
[73]. Id.
[74]. Id.
[75]. Id. at 372. For an excellent account of how debates about affirmative action and, more recently, claims about mismatch theory rely on assumptions about Black intellectual deficiencies, see Cheryl I. Harris & William C. Kidder, The Black Student Mismatch Myth in Legal Education: The Systemic Flaws in Richard Sander’s Affirmative Action Study, J. Blacks Higher Educ. 102 (2004).
[76]. There are two ways to think about White people’s beneficiary status. First, White people might be direct descendants of that history in the sense that their family history is bound up in it in some way. Second, White people might be indirect beneficiaries of that history in the sense of being able to trade on the opportunity structures that history created for people who are White.
[77]. Bakke, 438 U.S. at 324–79 (Brennan, J., concurring in part and dissenting in part).
[78]. Id. at 296 n.36 (opinion of Powell, J.).
[79]. See id. at 277 (noting that in both years in which Bakke applied to the medical school, “applicants were admitted under the special program with grade point averages, MCAT scores, and benchmark scores significantly lower than Bakke’s”); id. at 316–18 (describing the qualifications of incoming applicants to Harvard College); id. at 321–24 (setting forth data from the Harvard College Admissions Program).
[80]. Id. at 296 n.36.
[81]. See Russell K. Robinson, Perceptual Segregation, 108 Colum. L. Rev. 1093, 1095 (2008) (referring to “the racial ‘question mark,’ the invisible expectation of inferior performance that many African Americans believe hovers over their heads”).
[82]. See Bakke, 438 U.S. at 295.
[83]. The “fruit of the poisonous tree” doctrine anchors the Fourth Amendment’s exclusionary rule, which generally requires that evidence (the fruit) acquired from a Fourth Amendment violation (the poisonous tree) is inadmissible at trial. See Wong Sun v. United States, 371 U.S. 471, 503 (1963).
[84]. Bakke, 438 U.S. at 400 (Marshall, J., dissenting).
[85]. See id. at 296 n.36 (opinion of Powell, J.).
[86]. See Elise C. Boddie, The Sins of Innocence in Standing Doctrine, 68 Vand. L. Rev. 297, 301 (2015) (critiquing “the common presumption that white litigants have inherent standing to challenge race-conscious selection policies” and arguing that the presumption “is the handiwork of an ‘innocence paradigm,’ which assumes that whites are necessarily harmed by considerations of race that benefit racial minorities”).
[87]. See Bakke, 438 U.S. at 279 (noting that “[t]he [trial] court refused to order Bakke's admission . . . holding that he had failed to carry his burden of proving that he would have been admitted but for the existence of the special program”).
[88]. Bakke, 438 U.S. at 279.
[89]. See LaToya Baldwin Clark, Education as Property, 105 Va. L. Rev. 397, 398 (2019) (describing incidents of school districts prosecuting the crime of “stealing education” when parents are “illegally enrolling their children in school districts in which they do not reside . . . ”).
[90]. Bakke, 438 U.S. at 298; see also id. at 310 (“[T]he purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of ‘societal discrimination’ does not justify a classification that imposes disadvantages upon persons like respondent, who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.”).
[91]. See Grutter v. Bollinger, 539 U.S. 306, 333–34 (2003).
[92]. See Bakke, 438 U.S. at 322 (citing Harvard policy and comparing playing violin to race).
[93]. One could also add to this list of losses the fact that Justice Powell disaggregates Whiteness into ethnic categories to challenge not only the ideas of a White racial majority (in the 1970s), but also the notion of White racial advantage. For critiques of Powell’s disavowal of White racial power, see generally Ian F. Haney López, “A Nation of Minorities”: Race, Ethnicity, and Reactionary Colorblindness, 59 Stan. L. Rev. 985 (2007); Cheryl I. Harris, Equal Treatment and the Reproduction of Inequality, 69 Fordham L. Rev. 1753, 1771–75 (2001); Devon W. Carbado, Strict Scrutiny & the Black Body, 69 UCLA L. Rev. 2 (2022). We include this loss here, rather than in the text, because it is not a loss on which Chief Justice Roberts explicitly relies.
[94]. See generally Bruce Ackerman, Jack M. Balkin, Derrick A. Bell, Drew S. Days, John Hart Ely, Catharine A. MacKinnon, Michael W. McConnell, Frank I. Michelman & Cass R. Sunstein, What Brown v. Board of Education Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Landmark Civil Rights Decision (Jack M. Balkin ed., 2002).
[95]. See, e.g., Risa L. Goluboff, The Lost Promise of Civil Rights 238–70 (2007).
[96]. 426 U.S. 229 (1976).
[97]. See Haney López, supra note 93, at 985 (providing a broader discussion of the equal protection landscape Bakke inherited); see also Goluboff, supra note 95, at 238.
[98]. For a discussion of how some of the affirmative cases subsequent to Bakke further undermined affirmative action, see generally Kimberly West-Faulcon, Affirmative Action After SFFA v. Harvard: The Other Defenses, 74 Syracuse L. Rev. 1101 (2024).
[99]. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 208 (2023) (quoting Grutter v. Bollinger, 539 U.S. 306, 323 (2003)). Chief Justice Roberts would go on to note that the “Court’s analysis [in Grutter] tracked Justice Powell’s in many respects.” Id. at 211.
[100]. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 289–90 (1978).
[101]. See, e.g., Grutter, 539 U.S. at 326–27 (“We apply strict scrutiny to all racial classifications to “‘smoke out’ illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool.” (alteration in original) (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989))).
[102]. See Schuette v. Coal. to Def. Affirmative Action, Integration & Immigrant Rts. & Fight for Equal. By Any Means Necessary, 572 U.S. 291, 314 (2014) (holding that Michigan’s ban on race-based decision-making did not violate equal protection).
[103]. See SFFA, 600 U.S. at 208–09.
[104]. See id. at 209–13.
[105]. Among other cases, the Court cited to Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); Grutter v. Bollinger, 539 U.S. 306 (2003); and Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). SFFA, 600 U.S. at 206–07.
[106]. SFFA, 600 U.S. at 218 n.5.
[107]. Id. at 206. Citing to Bakke, Roberts asserted that “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color . . . If both are not accorded the same protection, then it is not equal.” Id. (first alteration in original) (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 289–90 (1978)). Chief Justice Roberts also cited to the language in Justice Powell’s opinion suggesting that “[r]acial and ethnic distinctions of any sort are inherently suspect.” Id. at 209 (quoting Bakke, 438 U.S. at 291). Chief Justice Roberts relied on other equal protection cases as well, including Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); Rice v. Cayetano, 528 U.S. 495 (2000); Grutter v. Bollinger, 539 U.S. 306 (2003); and Fisher v. University of Texas at Austin, 570 U.S. 297 (2013). SFFA, 600 U.S. at 206–08.
[108]. SFFA, 600 U.S. at 205 (quoting Loving v. Virginia, 388 U.S. 1, 8 (1967)).
[109]. Id. at 206.
[110]. Id. at 206–07 (citing Grutter, 539 U.S. at 326).
[111]. Id. at 209 (quoting Bakke, 438 U.S. at 291).
[112]. Id. at 212 (citing Grutter, 539 U.S. at 341).
[113]. Id. at 214 (quoting Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619 (1991)).
[114]. Id. at 212–15, 224–26, 228–29.
[115]. Id. at 193–94.
[116]. See id. at 196, 218.
[117]. See, e.g., Brian Flanagan, The Effect of Minority Preferences on the White Applicant: A Misplaced Consensus?, 34 Ohio N.U. L. Rev. 445, 446 (2008) (labeling affirmative action as “minority preferencing”); Feingold, supra note 5, at 1960 (describing how “the Colorblind Story” equates race-conscious admissions policies with “racial preference”).
[118]. See SFFA, 600 U.S. at 222 (“Harvard’s focus on numbers is obvious.”).
[119]. See id. at 350–51 (Sotomayor, J., dissenting).
[120]. Id. at 226 (majority opinion).
[121]. Id.
[122]. See id. at 208–09.
[123]. See id. at 209.
[124]. Id. at 202 (citing Strauder v. West Virginia, 100 U.S. 303 (1879)).
[125]. Id. at 205 (citing Shelley v. Kraemer, 334 U.S. 1 (1948)).
[126]. Id. at 207 n.3 (citing Korematsu v. United States, 323 U.S. 214 (1944)).
[127]. Id. at 203–04 (citing Plessy v. Ferguson, 163 U.S. 537 (1896)).
[128]. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 291–94 (1978).
[129]. SFFA, 600 U.S. at 229 (citing Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954)).
[130]. See Bakke, 438 U.S. at 289, 294–98; see also SFFA, 600 U.S. at 218–19, 229 (asserting that affirmative action violates the Equal Protection Clause because it admits applicants from certain racial groups at the expense of others).
[131]. Bakke, 438 U.S. at 307–09.
[132]. See id. at 310.
[133]. SFFA, 600 U.S. at 384 (Jackson, J., dissenting).
[134]. Id. at 214–15 (majority opinion).
[135]. Id.
[136]. Id. at 215.
[137]. Id. at 214 (alteration in original) (quoting Fisher v. Univ. of Tex. at Austin, 579 U.S. 365, 381 (2016)).
[138]. Id. at 209 (citing Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 291 (1978)).
[139]. Id. at 214 (‘“Classifying and assigning’ students based on their race ‘requires more than . . . an amorphous end to justify it.” (alteration in original) (quoting Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 735 (2007))).
[140]. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978); see also SFFA, 600 U.S. at 214 (asserting a measurability problem with the diversity rationale).
[141]. SFFA, 600 U.S. at 212 (citation omitted). Specifically, Chief Justice Robert’s endorsed Justice O’Connor’s invocation of that quote from Bakke.
[142]. See id. at 211, 215–17.
[143]. See id. at 208–09.
[144]. Id. at 212.
[145]. See generally Robinson, supra note 13.
[146]. See id. at 1005–07 (arguing that SFFA misquoted portions of Grutter and Fisher to justify its results).
[147]. And recall our earlier point that other cases had constrained the equal protection landscape as well, including cases in which Justice Powell himself participated.
[148]. SFFA, 600 U.S. at 227.
[149]. Id.
[150]. Id. at 318 (Sotomayor, J., dissenting).
[151]. Id.
[152]. Id. at 333.
[153]. Id. at 334.
[154]. Id. at 361 n.34 (third and fourth alteration in original) (citation omitted).
[155]. Id. at 360–61 (third alteration in original) (citation omitted).
[156]. There is far more that one could say about Justice Sotomayor’s dissent, including the care with which she articulates the racial history of the United States and the nexus between that history and extant forms of racial inequality.
[157]. Erika K. Wilson, Monopolizing Whiteness, 134 Harv. L. Rev. 2382 (2021).
[158]. Richard Rothstein, The Color of Law (2017).
[159]. Douglas A. Blackmon, Slavery by Another Name (2008).
[160]. Elise C. Boddie, The Indignities of Colorblindness, 64 UCLA L. Rev. Discourse 64 (2016).
[161]. Justice Powell’s opinion cited twenty-six scholarly sources. It appears that all the authors of those sources were White men. Working with a research assistant, we identified the author of each source and did a Google search to find a short biography of the author. We assessed gender identity based on the pronouns used in this biography. We based racial identification on publicly available photos of the author and any indication in the biography of a racial identity. Visual assessments are admittedly flawed but may, at a minimum, serve as a proxy for the racialization that the author experienced, even if not reflective of his internal racial identity.
[162]. Although Justice Marshall was on the Court (and was its only member of color), Justice Powell’s analysis rejected much of Justice Marshall’s thinking.
[163]. Justice Powell declared: “The concepts of ‘majority’ and ‘minority’ necessarily reflect temporary arrangements and political judgments. As observed above, the white ‘majority’ itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals.” Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 295 (1978). If all these minorities were entitled to “preferences,” “then the only ‘majority’ left would be a new minority of white Anglo-Saxon Protestants [(WASPS)].” Id. at 296–97. From Justice Powell’s vantage point, the disadvantages foisted on Black people were a fleeting experience. And according to Justice Powell—a descendent of English settlers in Jamestown, Virginia—even WASPS were at risk of becoming a minority. See Linda Greenhouse, Black Robes Don’t Make the Justice, but the Rest of the Closet Just Might, N.Y. Times (Dec. 4, 2002), https://www.nytimes.com/2002/12/04/us/black-robes-don-t-make-the-justice-but-the-rest-of-the-closet-just-might.html [https://perma.cc/C8TX-YM72] (“Lewis Powell was born into an old Virginia family that was collaterally descended from one of the original Jamestown colony settlers.”).
[164]. We recognize that Justice O’Connor’s affirmative action jurisprudence offers a thicker account of diversity than does Justice Powell’s. See generally Devon W. Carbado, Intraracial Diversity, 60 UCLA L. Rev. 1130 (2013). Our point is that the jurisprudence of neither Justice was motivated by anti-subordination sensibilities.
[165]. See supra text accompanying notes 41–42; see also Carbado, supra note 93, at 61.
[166]. See Bakke, 438 U.S. at 316.
[167]. See id.
[168]. See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 361 n.34 (2023) (Sotomayor, J., dissenting).
[169]. Id. at 318.
[170]. Id. at 332.
[171]. To claim that Brown was on their side, Chief Justice Roberts and Justice Thomas had to resort to excerpting briefs filed by the NAACP, rather than relying on the Court’s opinion.
[172]. Brown focused on the harms that segregation inflicted on Black children, as opposed to fixating on racial classifications or the intent of lawmakers, which is the center of current equal protection doctrine. See Haney-López, supra note 10, at 1850, 1853. Despite its importance, Brown, like the affirmative action cases, was ultimately a compromise. The Court deemed segregated schools unconstitutional, but it moved slowly to enforce a remedy. See Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 301 (1955) (calling for “all deliberate speed”).
[173]. See supra text accompanying notes 63–64 (arguing that affirmative action should rest on remedial justifications).
[174]. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 294–95 (1978) (citations omitted).
[175]. SFFA, 600 U.S. at 330 (Sotomayor, J., dissenting).
[176]. See Bakke, 438 U.S. at 294 n.34 (suggesting that “[o]ne should not lightly dismiss the inherent unfairness of, and the perception of mistreatment that accompanies, a system of allocating benefits and privileges on the basis of skin color and ethnic origin”).
[177]. Id. at 295 n.35 (quoting Alexander M. Bickel, The Morality of Consent 133 (1975)).
[178]. This count does not include instances where Justice Sotomayor cited portions of Grutter or Fisher that in turn cited Bakke. Recall that Chief Justice Roberts noted this trend, stating: “There is a reason the principal dissent must invoke Justice Marshall’s partial dissent in Bakke nearly a dozen times while mentioning Justice Powell’s controlling opinion barely once (Justice Jackson’s opinion ignores Justice Powell altogether).” SFFA, 600 U.S. at 227. Chief Justice Roberts apparently missed some of Justice Sotomayor’s citations to Bakke. We found five references.
[179]. SFFA, 600 U.S. at 227.
[180]. See Bakke, 438 U.S. at 387 (Marshall, J.).
[181]. See id. at 396–402.
[182]. Ball, supra note 15, at 125.
[183]. SFFA, 600 U.S. at 330 (Sotomayor, J., dissenting).
[184]. See id. at 212 (majority opinion); id. at 314 (Kavanaugh, J., concurring).
[185]. See id. at 370 (Sotomayor, J., dissenting).
[186]. Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (citation omitted).
[187]. See id. at 346 (Ginsburg, J., concurring).
[188]. See id. at 375–76 (Thomas, J., concurring in part and dissenting in part).
[189]. See supra notes 62–64.
[190]. SFFA, 600 U.S. at 370 (Sotomayor, J., dissenting).
[191]. Id. at 370 n.37.
[192]. After situating race-conscious admissions as an important tool for dismantling racial hierarchy, Justice Sotomayor closed her opinion by returning to the diversity rationale: “Diversity is now a fundamental American value, housed in our varied and multicultural American community that only continues to grow. The pursuit of racial diversity will go on.” Id. at 384.
[193]. See SFFA, 600 U.S. at 318–84 (Sotomayor, J., dissenting).
[194]. While Justice Jackson’s dissent does not track precisely the equal protection approach we are proposing (and she did join Justice Sotomayor’s dissent), it comes close to what we have in mind. For one thing, her dissent suggests that the project of equal protection should be to “level” the playing field and mitigate if not eliminate extant racial disparities. See id. at 408 (Jackson, J., dissenting) (“The only way out of this morass—for all of us—is to stare at racial disparity unblinkingly, and then do what evidence and experts tell us is required to level the playing field and march forward together, collectively striving to achieve true equality for all Americans. It is no small irony that the judgment the majority hands down today will forestall the end of race-based disparities in this country, making the colorblind world the majority wistfully touts much more difficult to accomplish.”). Moreover, Justice Jackson does not substantively engage with or rely on Justice Powell’s equal protection analysis, and the point of departure for her opinion is the following line from Justice Marshall’s Bakke opinion:
“Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into bondage for forced labor, the slave was deprived of all legal rights. It was unlawful to teach him to read; he could be sold away from his family and friends at the whim of his master; and killing or maiming him was not a crime. The system of slavery brutalized and dehumanized both master and slave.”
Id. at 386 (citation omitted). Finally, Justice Jackson does not anchor her opinion in Grutter’s racial classification reasoning and relies on that opinion only to suggest that affirmative action policies like the one UNC administered are “consistent” with Grutter. Id. at 384–85.
[195]. One of the axes along which Justice Sotomayor critiqued the Chief Justice is precisely the view that the majority resuscitated arguments that prior cases had rejected. According to Justice Sotomayor, “[l]ost arguments are not grounds to overrule a case.” Id. at 352 (Sotomayor, J., dissenting).
[196]. See, e.g., Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 823–38 (2007) (Breyer, J., dissenting) (insisting on the relevance of desegregation precedents and proposing a relaxed version of strict scrutiny).
[197]. SFFA, 600 U.S. at 371–72 (Sotomayor, J., dissenting) (citation omitted).
[198]. Although we do not discuss it here, these options include using facially neutral policies to advance racial diversity. See generally Jonathan P. Feingold, The Right to Inequality: Conservative Politics and Precedent Collide, 57 Conn. L. Rev. 57 (2024); see also Letter from 92 Legal Scholars, to David A. Brennen, Chair of the Council on Legal Educ. & Admissions to the Bar, Am. Bar Ass’n 53–60 (Sept. 30, 2024), https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/council_reports_and_resolutions/nov24/comments-received-standard-206-september-2024.pdf [https://perma.cc/N6R3-NTZV] (discussing law schools’ ability to pursue diversity after SFFA).
[199]. SFFA, 600 U.S. at 230.
[200]. See generally Robinson, supra note 13.
[201]. See generally Devon W. Carbado & Cheryl I. Harris, The New Racial Preferences, 96 Calif. L. Rev. 1139 (2008).
[202]. SFFA, 600 U.S. at 230.
[203]. See Sonja B. Starr, Admissions Essays After SFFA, Ind. L.J. at 20–21 (forthcoming 2025).
[204]. See id.
[205]. See id. at 23 n.77.
[206]. See supra text accompanying note 47.
[207]. In Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), a case involving the Americans with Disabilities Act, Chief Justice Rehnquist dismissed as irrelevant hundreds of reports of disability discrimination because these stories had not been tested by judicial standards. See id. at 370. Justice Breyer’s dissent catalogued these reports of discrimination and found “powerful evidence of discriminatory treatment throughout society in general.” Id. at 378-79 (Breyer, J., dissenting). SFFA overlooks the Garrett majority’s reasoning.
[208]. See Robinson, supra note 13, at 1012–1022.
[209]. On the complexities and contradictions of this term, see generally Robinson, supra note 13.
[210]. Chief Justice Roberts attempted to finesse this tension between the Constitution’s supposed requirement of colorblindness and his race-conscious essay exception by flatly asserting that students admitted based on essays that discuss how race affected their lives are not being admitted “on the basis of race.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 231 (2023). For a contrary view, see Robinson, supra note 13, at 1012–1022.
[211]. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 306 n.43 (1978).
[212]. Id.
[213]. See generally Devon W. Carbado, Footnote 43: Recovering Justice Powell’s Anti-Preference Framing of Affirmative Action, 53 U.C. Davis L. Rev. 1117 (2019).
[214]. See id. at 1149–57; see also Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of “Affirmative Action,” 94 Calif. L. Rev. 1063 (2006) (situating the stereotype threat and implicit bias literatures under the rubric of “behavioral realism” and explaining how behavioral realism is a productive framework with which to defend affirmative action); Feingold, supra note 12, at 707.
