Is this the end of Affirmative Action?

By Mississippi Center for Public Policy
July 3, 2023

What was the most significant thing Donald Trump did as President?

Love him or loathe him, Trump’s Supreme Court appointments look like they might have been the most consequential thing he did in office. Of the nine Justices on the Court, one third of them - Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett - are Trump appointees.

Trump’s trio have decisively changed the balance of opinion on the Court – and the implications of this only seem to grow.

The Supreme Court recently ruled that ‘affirmative action’ cannot be used as part of a university admissions process. Or to be more precise, it ruled that the system used by Harvard University and the University of North Carolina, does not comply with the principles of the Equal Protection Clause of the 14th Amendment or the protections of Title VI of the Civil Rights Act.

For decades, universities have used race-based preferencing to rig their selection systems in favor of some racial groups, and at the expense of others. Often this has meant universities admitting more African American students, with lower grades, than they otherwise might have, and at the expense of Asian American students with higher grades.

In the words of Justice Clarence Thomas, “all forms of discrimination based on race — including so-called affirmative action — are prohibited under the Constitution”.

Progressive academics, hooked on ‘woke’ ideology as an addict is to meth, may deviously look to circumvent the ruling. Regardless, an important victory has been won by those who believe that the way to end racial discrimination is to stop racially discriminating.

So-called ‘affirmative action’ can now be challenged in the knowledge that the Supreme Court will likely rule against it should ‘woke’ bureaucrats be daft enough to let things go far. Let the litigation begin …. Perhaps we will now see a flurry of cases aimed at overturning ‘affirmative action’ when it comes to awarding public procurement contracts and practices within local government?

A day later, the Supreme Court made another momentous decision, when it ruled that President Biden’s plan to cancel over $400 billion of student loan debt was also contrary to the Constitution. A few hours after that, the Court ruled that a Christian website designer could not be compelled by state law in Colorado to articulate views that they did not themselves endorse.

A year before, the Court famously overturned Roe Vs Wade, ruling that decisions about abortion should be left to each individual state.

Maybe the Court’s most consequential ruling of all is one that has received the least attention. Last summer, the Court ruled that the Environment Protection Agency did not have the power it presumed to have. For the first time since the New Deal, the legal assumptions that have allowed for the aggrandizement of the administrative state are being challenged.

Responding to the Court’s recent ruling on affirmative action, President Biden declared that ‘this is not a normal court’. He’s right.

The norm, since the Warren court of the 1950s, has been to have the Supreme Court adjudicate on the basis of what the judges would like the law to say. Today, we have a Supreme Court ruling on the basis of what the law actually says. So accustomed have we become after decades of judicial activism that might not feel normal, but it is what the Founders intended.

Back in the 1980s, Ronald Reagan attempted to change things, selecting the brilliant Robert Bork to sit on the Court - only to have him rejected by Congress after a bruising battle. Something similar almost happened when Bush the elder appointed Clarence Thomas. He had to endure a smear campaign similar to what Brett Kavanaugh experienced more recently.

Some characterize the change in the composition of the Court as a tilt towards conservatism after years of leaning liberal. I am not sure that is quite right. Recent Court rulings on election law in Alabama and Louisiana certainly weren’t welcomed by many conservatives in those states.

What the Supreme Court seems to have done is move away from judicial activism in favor of originalism – the idea that they should stay true to the original intentions of the Founders when they drafted the Constitution.

Perhaps that’s one bias the Supreme Court should always have.


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