Charles writes:

As we hurtle toward a resolution of the matter, I am struggling to intuit what the principled case could be in favor of the Supreme Court’s failing to strike down affirmative action this time. It seems to me that, irrespective of one’s preferred judicial philosophy, the logic leads inexorably to the Court’s nixing the practice. Originalist, non-originalist, “living constitutionalist” — whatever. Unless you truly think that the Court ought to just do what you personally prefer — or you think that Americans should be governed indefinitely by an unmoored and unelected Council of Experts — the outcome should be clear, no?

Charles is perfectly logical, as usual, and by venturing any disagreement, I will risk sounding unprincipled, as usual. I don’t think governments are run according to a train of logic, but that good government is an art.

Charles’s case is airtight. If the Civil Rights Act means what it says, the way colleges practice affirmative action is unlawful. I agree. I find the ways in which Ivy League schools discriminate against Asian applicants repugnant.

But I suspect that what is unlawful may in some sense be necessary.

Our top colleges know that their admissions process is a significant force shaping the nation’s governing class. It has a powerful, almost insidious influence that acts upon parents of young toddlers who are desperate to test into the right charter schools and get placement in the right extracurriculars. It knows, now more than ever, that the people it admits are likely to exercise real power in the United States. Look at the Supreme Court, Congress, the New York Times, and other organs of American government, both official and unofficial.

The Ivy League has been trying to recapture its power as much as it can, a desired monopoly on the formation of the American elite pursued since the presidency of John Quincy Adams. It nearly did so by the 1920s, only to find its progeny sharing power with Bible-school Southerners and other deplorables in the FDR coalition. But by the end of the Cold War, it had truly conquered — even hicks like Bill Clinton could be Rhodes Scholars. And I suspect one of the reasons why the Ivy League came to its present dominance is because it gave preferment to black candidates whose scores otherwise wouldn’t merit entrance.

Now, I’m not saying we should retain affirmative action in order to preserve Harvard and Yale. I’d happily see the latter two diminished by the elimination of the first.

But the fact is, in a democracy, representation is an essential principle. And if Harvard, Yale, and Princeton are curating our elite, then it makes perfect sense — for reasons of political stability and fairness — to make sure that African Americans and Hispanics are well-represented in those classes. This is a consideration that is perennial in government and in life — it’s why English kings once contemplated giving out peerages to loads of Labour members and Catholics, to balance an overly Tory and Protestant body.

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. I don’t think anybody — least of all conservatives — would like to see what a merit-only admissions process to the Ivy League produces. Especially the way merit is produced and accounted for today. Imagine freshman classes that are 35 percent male and rapidly declining, just for a start. The whole project would become untenable in five years.