Op-Ed: The Supreme Court will end affirmative action. What happens next?
In a recent op-ed, Justice Elena Kagan explained why the Supreme Court will grant review of California’s Proposition 209, which was recently struck down by the Ninth Circuit Court of Appeals. The court has not yet made a decision on the matter, however, and Kagan suggests that it will ultimately decide the issue.
This will be the sixth case that has been granted by the U.S. Supreme Court to review state laws that discriminate against members of protected classes. In these cases, the Court has never explicitly ruled on whether discrimination is illegal, choosing instead to defer to state and local officials on the question.
But as Justice Alito’s dissent in Fisher v. University of Texas made clear, it’s not only state laws that the Court refuses to review. In recent years, the Court has repeatedly refused to review federal laws that seek to restrict the rights of racial minorities, including, most recently, the Voting Rights Act of 1965.
And the reasoning that the Court applies when it refuses to review a federal law is identical to the reasoning it applies when it refuses to review a state law. As Kagan explains, both state and federal laws that seek to bar members of protected classes from the opportunities available to others have “a substantial effect on the ability of others to participate effectively in our society” (emphasis added).
So why does this matter? Justice Kennedy’s majority opinion in the landmark case Fisher v. University of Texas, which held that state laws that ban affirmative action constitute “unconstitutional racial classifications,” is itself a rejection of the “classifications” used to deny admission to underrepresented racial minorities—an issue upon which the Supreme Court has never ruled.
With the exception of the ruling on Proposition 209, it is difficult to see how the Court could have been more clear in its rejection of the “affirmative action” issue than in Fisher. But in addition to Justice Kennedy’s opinion, it is also important to recall that the Court’s opinion in