How Will SCOTUS Rule on Affirmative Action?

While many suspect the conservative-leaning court will overrule 44 years of precedent, one expert believes there's a path to upholding affirmative action.

Published November 9, 2022

Edited by Rebecca Long
How Will SCOTUS Rule on Affirmative Action?
Higher Ed Policy Opinion & Analysis
Photo by Eric Lee / The Washington Post / Getty Images

  • The Supreme Court heard arguments for and against affirmative action in college admissions on Oct. 31.
  • An overruling of precedent would mean institutions can no longer consider race when evaluating applicants.
  • Lines of questioning from the justices could be a clue into how the court will rule in the case.

After the Supreme Court's five-hour hearing on affirmative action in college admissions last week, many experts said they expected a cut-and-dry outcome: The court — made up of a majority of conservative-appointed justices — will rule to overturn the constitutionality of affirmative action.

Justices heard oral arguments for the two cases involving the University of North Carolina (UNC) and Harvard University on Oct. 31. The related but separate cases will lead the court to decide on the constitutionality of the use of race-conscious admissions policies at institutions that receive federal dollars.

A close listen to the hearing offers additional clues into how the conservative-leaning Supreme Court will rule. BestColleges spoke with Kimberly West-Faulcon, the James P. Bradley Chair in Constitutional Law at Loyola Marymount University, about the possible outcomes of the case. She read into the justices' lines of questioning and considered their past opinions to help students understand where their ruling might land.

Overturning Constitutionality of Affirmative Action

A future in which the Supreme Court completely overturns Regents of the University of California v. Bakke — the case that established the legality of affirmative action — is very much on the table.

West-Faulcon told BestColleges that the six conservative-leaning judges haven't been afraid to overrule longstanding precedent recently. Most notably, these justices did so in overturning Roe v Wade, which had been the precedent for the legality of abortions in the U.S. for nearly 50 years.

She added that six judges have expressed policy objections to race-conscious admissions in the past. That may make them more willing to overturn Bakke.

"I didn't leave the five-hour hearing … thinking that there had been a dramatic change in my view about six of the justices' policy objections to race-based affirmative action, no matter how narrowly tailored."

Send Prior Decisions Back to Lower Courts

West-Faulcon said it seemed to her that Justices Brett Kavanaugh and Amy Coney Barrett were willing to entertain discussions during the hearing centered on how affirmative action is applied at UNC and Harvard rather than its constitutionality in general.

What does this mean?

The Supreme Court upheld the constitutionality of race-conscious admissions in the 2003 case Grutter v. Bollinger. West-Faulcon said that the case outlined that colleges using race-conscious admissions must do so in a limited matter. Schools should also look to abandon this practice as soon as possible, meaning once they attain adequate diversity levels among students.

Kavanaugh and Barrett may be more concerned with whether UNC and Harvard adhere to this "strict scrutiny" standard.

If this is true, that leaves the possibility these two justices join their liberal-leaning colleagues to rule 5-4 to uphold affirmative action. If that happens, West-Faulcon said Kavanaugh and Barrett would likely write a joint opinion that says the lower courts must reevaluate the prior decision but with a stricter view of what race-conscious admissions policies are acceptable.

She said this has happened in the past.

There were two Fisher v. University of Texas cases during the past decade that dealt with affirmative action. In both cases, West-Faulcon said the court upheld affirmative action. However, it did so each time with the inclusion that lower courts needed to raise the bar a university must clear to justify its policy.

The new standard of review would become precedent.

Limiting Affirmative Action to Avoid Destabilizing Higher Ed

U.S. Solicitor General Elizabeth Prelogar, who argued on the side of UNC and Harvard during the Halloween hearing, stressed a key point during her argument: Reversing 44 years of affirmative action precedent could have a "destabilizing" effect on higher education.

West-Faulcon said this argument could strike a chord with Justice John Roberts.

The historically moderate judge has shown to be wary of overturning longstanding precedent, she said. While he has a history of expressing "a pretty policy-oriented stance on affirmative action and not thinking it's a good thing," she said he might not be eager to flip a switch and shut down affirmative action altogether.

Roberts — and possibly Kavanaugh and Barrett, too — may instead opt to turn down the dial on race-conscious admissions by limiting how colleges and universities can apply this policy.

Establish A Timeline to End Affirmative Action

Throughout the hearing, some justices repeatedly raised the point of a 25-year limit on legal affirmative action.

West-Faulcon said that originates from the 2003 Grutter case. At the time, Justice Sandra Day O'Conner wrote a majority opinion that said race-conscious admissions is not something colleges should have in place in perpetuity. She opined that the practice should end within 25 years (by 2028).

"We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," O'Connor wrote for the majority opinion at the time.

But because that wasn't central to her argument, West-Faulcon said most in the legal community didn't see that as a set time limit.

Justices Kavanaugh and Barrett seemingly disagree.

She said the two justices regularly referred to that timeline as a "sunset provision." That leaves the door open that the two could rule to keep affirmative action but set a timeline for when institutions must stop using race-conscious admissions.

"This sounds more like policymakers deciding the best way to admit students to either Harvard or UNC," West-Faulcon said.

Because this would appear as blatant policy-making, she said this outcome is unlikely.