When the US supreme court abolished women’s access to abortion last year, civil-rights advocates saw the future of affirmative action and other longstanding precedents as similarly bleak. So on Thursday, after the court, which has a conservative supermajority, ruled that Alabama discriminated against Black voters by redrawing its congressional districts, those advocates saw a brief glint of hope.
For some of the legal experts I spoke to, this week’s surprise ruling, which reinforced the Voting Rights Act’s power to protect voters from racial discrimination, represented a promising omen for the preservation of race consciousness in other arenas. Of particular note is the court’s upcoming decision on whether to end race-related affirmative action in colleges and universities. Thursday’s decision, for many, served as an affirmation from the court that protections such as these can and should exist in American law.
The Alabama case focused on the state legislature’s “colorblind” approach to redistricting, which resulted in just one majority-Black district in a state where 27% of the population is Black. Now, as a result of this ruling, the state’s newly redrawn map could make two of the state’s seven congressional districts majority-Black, which could help Democrats.
In the majority opinion, the conservative chief justice, John Roberts, acknowledged concerns that the Voting Rights Act “may impermissibly elevate race in the allocation of political power”. Yet that was not enough for Roberts and Justice Brett Kavanaugh, who broke with the conservative majority, to justify overturning decades of previous court rulings. Roberts wrote, “... the Court simply holds that a faithful application of precedent and a fair reading of the record do not bear those concerns out here”.
Some legal experts argue that Roberts’ reliance on precedent and trial record in this case could bode well for the court’s ruling on race-consciousness in college admissions, which is expected sometime this month. Similar to the protections enacted under the Voting Rights Act, colleges and universities have taken race into account during their intake processes. The practice has helped generations of Black and brown students gain access to institutions of higher education. Of policies like these, Damon Hewitt, the executive director of the Lawyers’ Committee for Civil Rights Under Law, told me over email: “[The Alabama decision] validated what we in the civil-rights community have been saying all along: race matters.”
Affirmative action in higher education met its first major challenge in 1978, in a case involving Allan Bakke, a white man who was denied admission to the University of California at Davis medical school. Bakke argued that he was twice denied entry to the medical program, which reserved 16 slots each year for “qualified” applicants of color, because he was white. In a 5-4 decision, the court concluded that race could be factored in the admissions process but stopped colleges from setting racial quotas. That laid the groundwork for future efforts by white applicants to object to race-conscious admissions.
But in a precedent-setting case in 2003, Grutter v Bollinger, the court ruled that higher education institutions can factor in race as a means of achieving diversity at colleges and universities because it represented a “compelling governmental interest.” Now the Grutter case is under attack thanks in part to a yearslong campaign by the conservative activist Edward Blum and by legal groups focused on curtailing race-specific civil rights protections in American society.
Blum has been successful in his efforts before: in 2013, for instance, he sponsored a case that overturned a key provision of the Voting Rights Act. Roberts wrote the majority opinion, effectively killing the federal government’s ability to stop states and other jurisdictions with a sordid history of racial discrimination from imposing changes to voting laws without their permission.
But the Alabama case indicates that, when it comes to race-consciousness, the perceived fixed conservative supermajority may be flexible. Deborah Archer, the co-faculty director of New York University’s Center on Race, Inequality and the Law, told me that she had noticed a “shift, where it felt like the government was going to lose all of its ability to be responsive to deep racial inequalities that have persisted”.
Thursday’s majority opinion, though, “was really kind of a push back to the sense that we have to have a colorblind, race-neutral approach in everything that the government does”. Archer, who is also the president of the American Civil Liberties Union, added the court upheld the validity of the “effects test”, which is used to determine how much of a discriminatory impact a policy has on communities of color – a practice, she said, that “you always feel is on the chopping block”.
Still, it was difficult for legal experts to unpack what changed in the last decade for Roberts between the two cases in Alabama – the 2013 Shelby county ruling and today – let alone for his fellow conservative Kavanaugh. In 2021, Roberts and Kavanaugh joined the conservative majority in upholding voting restrictions in Arizona in Brnovich v Democratic National Committee.
And in 2022, during the midterms, Roberts and Kavanaugh sided with conservative justices in allowing an election map in Louisiana that lower courts also found to be illegally gerrymandered. Archer pointed to a possible influencing factor: Kavanaugh’s history of hiring Black law clerks. “Having a diverse group of clerks influences discussions in the way that it does in the classroom and the workplace – just having a more diverse group of people who bring different lived experiences to these questions will be helpful,” Archer said. “He would hopefully then be able to argue that it is possible to be conscious of diversity and value diversity without engaging in unfair practices, to value diversity without discriminating against any other applicant.”
She was cautious, however. Kavanaugh’s legal record before this week’s ruling indicates that he is more likely to embrace race-neutrality. “It would be a mistake to assume that [Kavanaugh] will be a vote who will regularly support affirmative action or diversity programs,” Shaw said. Still, she added, based on Thursday’s decision, his vote may be “gettable”.
Roberts’s and Kavanaugh’s voting histories show that any prediction about the impending affirmative action decision is difficult to make. And even though Roberts’s majority opinion was incisive, and Kavanaugh’s support was stunning, experts believe they should be considered cautiously. Having largely rejected race-conscious policies until this week, these two justices hold ideas about the practice that remain uncertain.
