


In Shakespeare’s Henry V, the title monarch sits through a long, laborious legal discourse on whether he has a right to the French crown. After listening for a while, he doesn’t seem to know what answer he’s been given, asking, "May I with right and conscience make this claim?"
After skimming the Supreme Court’s affirmative action decision from Thursday, opponents of race-based governmental policies might be similarly unsure. They won in some sense. But how deep does this victory extend?
Conservatives looked for three outcomes in this case. First, they wished the justices to strike down the race-based admission policies at Harvard and the University of North Carolina. Second, they wished the court, in so doing, to overturn Grutter v. Bollinger, the 2003 University of Michigan Law School case that gave a limited but real path for university affirmative action policies. Third, they hoped the court’s reasoning in doing the first two would declare that all uses of race in college admissions violated either the Civil Rights Act of 1964 or the 14th Amendment’s equal protection clause.
UNIVERSAL BASIC INCOME PAYMENTS: CASH GIVEAWAY PROGRAMS EXPAND DESPITE MIXED RESULTSThe court’s six-person majority did strike down both Harvard and North Carolina’s race-based admission policies. Whether the majority gave victory on the other two grounds was less clear. Chief Justice John Roberts’s majority opinion did not say it overruled Grutter v. Bollinger. In fact, it claimed to apply elements of Grutter to justify striking down Harvard and North Carolina’s policies. Neither did the majority say in so many words that any use of race in admissions policies was illegal or unconstitutional.
One might think, based on those facts, that conservatives only got one out of three. Affirmative action lost the battle but won the war. But a deeper dive shows a much broader victory for opponents of race-based policies.
Regarding Grutter, Roberts’s opinion did apply certain aspects of that case to the present one. But those applications were highly selective. Roberts focused on affirming what the Grutter majority thought must be avoided in permissible race-based admissions regimes. He spent little time even explaining, much less affirming, what universities could do about race. He leaned heavily on Grutter's claim that affirmative action programs must be temporary with a discernable end date, thus reading even Grutter’s positive arguments for affirmative action as fleeting.
Thursday’s majority also, without admitting so, essentially modified Grutter in important ways. Grutter had claimed that the educational benefits coming from racial diversity were a compelling justification for affirmative action. The court didn’t reject this point explicitly. But they applied an exacting standard to what it meant and how to accomplish it. In fact, it is hard to see how the same rigorous analysis applied to the facts in Grutter wouldn’t have necessitated Michigan’s program being struck down rather than upheld.
Regarding the legal status of race-based policies, it seems the court also handed a bigger victory to conservatives than at first appeared. Roberts’s opinion did not use the magic words that said any and all race-based policies violated the law. But its reasoning only could lead to that same outcome. The majority left some room for race-based governmental action in dire emergencies or to remedy past discrimination against particular persons. They left a small door open so that people could mention how their ethnic heritage or the discrimination they had faced helped form their character.
CLICK HERE TO READ MORE FROM RESTORING AMERICABut even in those last examples, the court emphasized that it was how the person responded — namely, how they manifested courage or leadership — that must be the basis for admission, not the color of their skin. So, conservatives should not underestimate the magnitude of their victory Thursday. They essentially won on all three points, the accomplishment of a long-standing, massive goal. The colorblind Constitution is the judicially-affirmed law of the land.
In Henry V, Henry gets a stunning victory, claiming the throne of France against great odds. But the victory proved passing and troubled, eventually ending in the loss of all gained. Conservatives did win a judicial triumph Thursday, no doubt. It will be a contested victory going forward. Let us hope, unlike in the Hundred Years' War, that this great victory is one that lasts.
Adam Carrington is an assistant professor of politics at Hillsdale College.