On October 31, the Supreme Court will consider two lawsuits—SFFA v. Harvard and SFFA v. UNC—that target race-conscious university admissions. The outcome is all but certain. The Court’s rightwing majority will ban all universities from considering an applicant’s race. The decision will cap more than fifty years of judicial hostility to antiracist projects that followed the Civil Rights Act of 1964.
This result is itself extreme; it constitutionalizes white racial advantages and legitimizes racial inequality. But the Court’s reasoning is also extreme. To justify a ruling that outlaws modest tools to remedy racism in America, the majority will deploy three of our country’s most racially progressive precedents: The Fourteenth Amendment, Title VI, and Brown v. Board of Education. Through raw power and judicial fiat, the Supreme Court will transform antiracism mandates into commands for colorblindness. This fidelity to colorblindness threatens more than affirmative action. The Supreme Court is poised to deploy the same logic to further gut voting rights, curtail protections for indigenous communities, and outlaw all efforts to remedy racial inequality—even efforts implemented through colorblind means.
Ratified in 1868, the Fourteenth Amendment buttressed a nascent “abolitionist project” to reconstitute America’s racial order. Sitting between the Thirteenth Amendment (which abolished slavery) and the Fifteenth Amendment (which expanded suffrage), the Fourteenth Amendment extended to Black Americans citizenship and the rights and protections guaranteed by the Bill of Rights. Three years’ later, the Supreme Court observed that the three Reconstruction Amendments had “one pervading purpose . . . the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over them.” Professor Brandon Hasbrouck explains that for Black Americans, “the Reconstruction Amendments guaranteed their right to establish and protect this new society.” Nearly two centuries later, Justice Thurgood Marshall put it plainly: “While the Union survived the Civil War, the Constitution did not.” Where an anti-democratic and white supremacist document once stood, the guarantee of a multiracial union took its place.