In response to my post asking whether nixing affirmative action would be politically uncontroversial, Michael writes:

Whatever the Court rules, I suspect that our colleges will find some way of continuing to redistribute the admissions process in a way that keeps the colleges and America’s elite looking legitimate to the American people while also maintaining a pretense of academic excellence.

Michael thinks that this continuation may be “necessary.” I emphatically do not. Nevertheless, I think he’s right to propose that the practice will continue in some form — if just because there’s no way to stop it. I want affirmative action to be struck down because I think that the law requires that it be struck down. The question before the Supreme Court is “what does the law say?” and, within our constitutional order, the Court is obliged to answer that inquiry honestly. But, yes, I am aware that, even if it does, colleges that want to keep discriminating will probably find a way. Certainly, Congress can prevent universities from asking applicants their race, or from instituting quotas, or from publicly admitting that they favor candidates from one group over another. But it cannot stop admissions offices from signaling that they will consider the “applicant as a whole,” and from making it abundantly obvious that an aspirant who begins a cover letter with “as an immigrant from Ghana” or “as the descendent of slaves” or “as a poor woman from Appalachia” will benefit from having done so. We are, I suspect, about to see an onslaught of clandestine resistance from our universities.

Does this change what I expect of the Supreme Court, or the laws it is charged with upholding? It does not. America will never live up perfectly to its ideals, but that is not a case against those ideals being advanced by its government wherever possible. Government-funded discrimination is grotesque. If it is to happen, I must insist that it happens underground — in defiance of the law, not blessed by it.