For many years, there was a settled constitutional rule that universities could sometimes prefer certain applicants over others on the basis of race. In Students for Fair Admissions v. Harvard College (“SFFA”), the Supreme Court unsettled that rule. For advocates of racial integration and equality of opportunity, the decision comes as a major blow—a ruling whose “devastating impact,” in Justice Sotomayor’s assessment, “cannot be overstated.” But, in our view, SFFA can also be seen as a portrait of a body of law that is in transition. The ruling is ambivalent, unsure of its own import, and thus contains the seeds of more than one possible future.
Dobbs v. Jackson Women’s Health Organization, handed down a year before, makes for an instructive comparison. Both were blockbuster rulings in which the conservative majority finally triumphed on a central question that had divided the Court for decades. In other respects, though, the opinions could hardly have been more different. Dobbs tore up the Court’s abortion precedents root and branch, unequivocally “return[ing] the issue of abortion to the people’s elected representatives.” Its denunciation of abortion rights was sweeping and definitive. And the Court’s ruling therefore left hardly any room for a “next case” about the status of abortion as a specially protected facet of liberty.
SFFA differed markedly in its orientation both to the past and to the future. Looking backward, the Court purported not to overrule its affirmative-action precedents, but to faithfully apply them. “We have never permitted admissions programs to work [as Harvard’s and the University of North Carolina’s did],” Chief Justice Roberts claimed, “and we will not do so today.” Looking forward, Roberts made clear that SFFA had not purged all traces of race consciousness from the college admissions process—and he expressly contemplated that some manner of dialogue with regulated universities over the pivotal lines would therefore continue. Anticipating that next round of litigation, he remarked on where universities should turn for “legal advice on how to comply”—not to the dissenters—and he warned that whatever latitude universities enjoyed did not extend to “simply establish[ing] through … other means the regime we hold unlawful today.”
All of this prompts a question: If “[e]liminating racial discrimination means eliminating all of it,” as the majority said, why couldn’t the Court just put the issue to rest? The short answer is that, despite its sometimes strident rhetoric, there were certain forms of race consciousness that even the majority did not want to condemn. “[N]othing in this opinion,” Roberts explained, “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.” “A benefit to a student who overcame racial discrimination” would be permissible, for instance, as long as it was “tied to that student’s courage and determination.” Likewise, the Court would have no objection to “a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal,” if the “benefit” is “tied to that student’s unique ability to contribute to the university.” In cases such as these, the Court reasoned, the student would “be treated based on his or her experiences as an individual—not on the basis of race.”