On Monday, the nation’s most powerful policymaking body signaled that it will soon decide the fate of race-conscious admissions policies in higher education. The nearly guaranteed outcome, a ban on affirmative action in colleges and universities, will reverse 44 years of precedent, affect thousands of schools across the country, and upend the admissions process for millions of students. This new policy will not be enacted by elected representatives in Congress, or the president, or state legislatures. It will, instead, be imposed by six justices of the Supreme Court—policymakers whom no one elected and no one can vote out.
The impending demise of affirmative action therefore marks yet another triumph of the GOP’s current approach to lawmaking. Republicans need no longer pass their agenda through the lengthy and burdensome democratic process. Now that they have captured the federal judiciary, they can sit back as the robed members of their caucus transform the party platform into law.
The Supreme Court has repeatedly upheld race-conscious admissions under both the Civil Rights Act and the Constitution. In 1978, 2003, and 2016, a majority approved affirmative action programs at both state and private schools. The court held that these schools have a compelling interest in promoting “the educational benefits that flow from student body diversity.” At the same time, it subjected affirmative action programs to strict scrutiny, requiring that they be “narrowly tailored” to achieve that goal. Racial quotas are strictly forbidden, and schools must undertake a “holistic review” of each applicant. Moreover, SCOTUS allowed states to prohibit any consideration of race in admissions.
But the conservative legal movement has never been content to let the people determine the fate of affirmative action. Its attorneys have long asked the federal courts to issue a blanket ban on the practice, asserting that it violates Title VI of the Civil Rights Act as well as the 14th Amendment’s equal protection clause. The leader of this campaign is Ed Blum, a Republican activist who orchestrates legal challenges to race-conscious admissions policies (as well as the Voting Rights Act). Blum has worked alongside a network of conservative attorneys—including William Consovoy, former counsel to Donald Trump and proponent of voter suppression laws—to tee up another Supreme Court case. His group, Students for Fair Admissions, claimed to represent Asian Americans students who allegedly faced discrimination from race-conscious admissions programs at the University of North Carolina and Harvard.
Why does Blum think he’ll succeed with Asian American plaintiffs in 2022 when he failed with the notorious Abigail Fisher in 2016? It’s not really about the new litigants, of course—it’s about the new Supreme Court. Two justices who supported affirmative action, Anthony Kennedy and Ruth Bader Ginsburg, have been replaced by hardline conservatives Brett Kavanaugh and Amy Coney Barrett. There are clearly six votes to outlaw the policy, even though there is strong evidence that doing so will fly in the face of the 14th Amendment’s original meaning. (The court’s self-proclaimed originalists have long suspended originalism in this area.)
For as long as GOP lawyers have sought to eradicate affirmative action through federal courts, opponents of the policy have pushed for bans through the democratic process, as well. Nine states have banned the practice by legislation, ballot initiative, or executive action; these moves resulted in staggering decline in the share of underrepresented racial minorities enrolled in higher education. Republican lawmakers have introduced federal legislation and even a constitutional amendment to forbid race-conscious admissions. But the dream of a nationwide prohibition has floundered—until now. Not because Republicans won enough votes in Congress or persuaded enough states to enact a ban, but because they installed enough conservative judges to make this dream a reality by judicial diktat.
This same story has played out time and again over the last few years. The GOP has outsourced large chunks of its agenda to the courts, which—suddenly infused with Trump’s nominees—are eager to oblige. Republicans couldn’t hobble public sector unions in blue and purple states, so they asked SCOTUS to do it. Republicans couldn’t convince Congress to create a nationwide right to concealed carry, so they asked SCOTUS to do it. Republicans couldn’t force states to legalize discrimination against LGBTQ people, so they asked SCOTUS to do it. Republicans couldn’t secure legislative repeal of campaign finance restrictions, so they asked SCOTUS to do it. Republicans couldn’t stop the president from issuing vaccine policies, so they asked SCOTUS to do it. Republicans couldn’t compel states to fund religious education, so they asked SCOTUS to do it. Republicans couldn’t pass a bill to eviscerate the Voting Rights Act, so they asked SCOTUS to do it. The list goes on; it will only grow longer. And these days, SCOTUS almost always says yes.
Undoubtedly, both parties rely on the courts to further their interests to some degree. Most famously, Democrats have long depended on the federal judiciary to safeguard reproductive rights (a strategy poised to fail spectacularly). But in recent years, Republican politicians have grown far more reliant on courts to accomplish their policy goals.
Why? One likely reason is that many of these policies are wildly unpopular. For instance, Americans support basic gun safety measures, like bans on assault weapons and large-capacity magazines, by huge majorities. GOP lawmakers know they can’t defeat all of these laws, so they’ve handed off the job to their judges, who will never bear the consequences of their own decisions. The same is true of campaign finance limits, which are wildly popular among the American public yet dead on arrival at the Supreme Court. Another, more obvious reason is that Trump appointed 234 federal judges, including one-third of SCOTUS. It is suddenly very easy to win a nationwide injunction against any policy that a Republican attorney general dislikes.
This approach might not be so galling were it not for two hypocrisies at its heart. First, Republicans have long railed against “activist” judges who supplant the role of Congress and state legislatures. Yet their party now relies on large-scale judicial activism to achieve its aims, specifically because it can’t win these battles in Congress and state legislatures.
Second, the GOP has elevated the Senate filibuster as a sacred guardian of democracy, but it does not apply to judges. (Democrats repealed the filibuster for lower court judges in 2013; Republicans repealed the filibuster for Supreme Court judges in 2017.) As a result, the Senate can confirm judges with 50 votes, but can only enact most legislation with 60 votes. This disparity consistently favors Republicans, who have prioritized aggressively ideological and brazenly partisan judges. For proof, look at what happened just last week: Senate Democrats failed to overcome a GOP filibuster of two voting rights bills—legislation that was necessary in large part because the Supreme Court gutted laws on the books.
Any hope of limiting the GOP’s agenda has evaporated. In the early months of Barrett’s tenure as a justice, it looked like she and Kavanaugh might join with Roberts to tap the brakes on the conservative revolution. At a minimum, it seemed that three conservative justices wanted to proceed cautiously for fear of dashing their own legitimacy. But the court’s addition of affirmative action to its extensive hit list is only the latest evidence that as democracy breaks down, its juristocracy is gladly seizing the reins of power.
