Waiting for the Justices – The New York Times

Sometime in the next 10 days, the Supreme Court is expected to tightly restrict or ban race-based affirmative action in college admissions. The ruling could come as soon as tomorrow or as late as Friday, June 30, before the justices leave for their summer break.

In today’s newsletter, I will walk through two of the big uncertainties about the decision — one involving the ruling itself, the other involving the political reaction. With both questions, the dynamics are quite different from what they were with the highest-profile case last year, on abortion.

The details matter

In the abortion case, Dobbs v. Jackson Women’s Health Organization, the details of the court’s ruling were of only secondary importance. The justices faced a fundamental decision: Should they overturn Roe v. Wade and allow states to outlaw abortion? Once a majority of justices decided to do so, the written opinions that they released were less meaningful.

“The decision in Dobbs was essentially binary,” Adam Liptak, who covers the Supreme Court for The Times, told me. “The affirmative action rulings are likely to be more complicated, raising more questions than they resolve.”

Many experts expect the court to strike down the two specific race-based admissions programs that they’re reviewing, at Harvard and the University of North Carolina. But the detailed rationale will matter. It will shape future admissions policies, as well as any legal challenges to those policies from opponents of affirmative action.

One question is whether the justices will allow university administrators to monitor the racial composition of the student body, even if they cannot use race-based admissions preferences. In a 2007 case about K-12 education, Justice Anthony Kennedy (who has since retired) made this subtle distinction. He held that schools could use racially neutral factors to achieve racial diversity.

What does that mean? Imagine that a college gave an admissions bonus to children of all races who grew up in a neighborhood with a poverty rate of at least 15 percent. Under Kennedy’s standard, the college could still analyze how many Black students were enrolling — and change the threshold to, say, 20 percent partly to increase Black enrollment.

The current court may reject Kennedy’s distinction, however. It might rule that racial diversity is not a legitimate factor for colleges to prioritize and might bar almost any discussion of race.

Either way, the ruling is unlikely to be the last word. The admissions process is too complex for the justices to anticipate every scenario. The ruling will instead become the ground rules on which future legal cases are fought.

A backlash is unlikely

Barring a major surprise from the court, the ruling will probably anger many Democrats. They may also be tempted to assume that a political backlash will follow, as happened after the Dobbs ruling.

In that case, the court was indeed acting in defiance of public opinion. Polls show that most Americans support widespread access to abortion, at least early in pregnancy. After the court overturned Roe and abortion became less available, some voters evidently reacted by voting for Democrats in last year’s midterm elections.

“But,” as my colleagues Michael Powell and Ilana Marcus recently wrote, “the politics of affirmative action are different.”

Most Americans oppose race-based admissions programs, polls show. When these programs have appeared on the ballot, they have almost always lost, including in Arizona, California, Michigan and Washington State, which are hardly red states. In California three years ago, the policy lost in heavily white and Asian communities — and fared worse in Black and Hispanic areas than Democratic candidates did.

If Democrats try to generate mass outrage about a court ruling on affirmative action, they are likely to be disappointed, as Carlos E. Cortés, a historian at the University of California, Riverside, and a supporter of the policy himself, recently told The Times. “If they keep making it a cause, they will just alienate Hispanic and Asian voters,” Cortés said.

Yet Democrats may have a more promising path open to them. Polls also show that most Americans do support giving students credit for overcoming economic disadvantage. And economic disadvantage is not evenly distributed across racial groups.

Policies that consider family wealth and neighborhood wealth — rather than only income, the poverty rate and parental education — are especially likely to produce diverse classes. They’re also likely to remain legal, whatever the justices say about race. If liberals make a major push to expand those policies, it could have a big effect.

“On one level, a Supreme Court decision ending racial preferences presents a crisis,” Richard Kahlenberg recently wrote for The Liberal Patriot. “Simply ending racial programs without coming up with something new would devastate Black and Hispanic constituencies and be terrible for the country. But Democrats also will have been handed an opportunity to create something better — an affirmative action policy that reminds working people of what they have in common, not what divides them.”

And a tip: Even more so than with other big Supreme Court cases, I encourage you to read beyond the headlines and into the details of the coverage. And remember that journalists don’t get advance copies of Supreme Court rulings, which typically appear around 10 a.m. Eastern. We need to spend the morning making sense of them. As a result, coverage of a complex decision tends to be strongest starting in the afternoon.

Related: Students whose lives were shaped by race-conscious admissions share their thoughts.

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