The subject of what goes under the shibboleth of “affirmative action” is both close to my heart and one about which I have frequently written, usually drawing on Andrew Kull’s legal history The Color-Blind Constitution. Published by Harvard University Press in 1998, it remains a terrific book. If Kull updated it to take cases of the past 25 years into account, the update would vindicate his analysis. One cannot miss Kull’s admiration for those who have sought to enforce “the color-blind Constitution” in lawsuits going back to 1850 and the doublethink that has defeated it.
It is a subject shrouded in doublethink. Doublethink permeated the UNC and Harvard “affirmative action” cases argued yesterday in the Supreme Court. The Supreme Court has posted oral argument in the UNC case here and in the Harvard case here.
Perhaps the time has come to place “affirmative action” in the course of ultimate extinction. One cannot have any doubt, however, that if the Supreme Court upholds the claims of color-blindness in higher education, its decisions will run up against a wall of massive resistance among those who are responsible for the regime of racial discrimination. The Star Tribune, for example, celebrates their efforts in advance in “As Supreme Court weighs affirmative action, Minnesota colleges pledge to uphold diversity efforts.” Assuming the Court finds its way in these cases, however, the decisions will finally place the law on the right side.
The Manhattan Institute convened a virtual discussion immediately following the conclusion of the oral argument in the two cases yesterday afternoon. The participants featured MI Senior Fellow and Director of Constitutional Studies Ilya Shapiro, University of San Diego Law School University Professor Gail Heriot, and MI adjunct fellow Wai Wah Chin. The discussion was moderated by MI senior fellow and director of legal policy James R. Copland. The video is below.