JTFMax Law:

The Supreme Court’s first Latina and first Black female justices slammed their conservative colleagues for ignoring the persistent presence of racism in the United States in striking down affirmative action in college admissions on Thursday. In a pair of decisions, the high court’s 6-3 majority ruled that race-conscious admissions at Harvard and the University of North Carolina violated the equal protection clause of the 14th Amendment. That’s an important ruling but far from the last word. It has set the stage for future litigation over how the Constitution should be interpreted.

In a dissent, liberal Justice Sonia Sotomayor wrote that the decision “ignores that racial inequality persists in our country despite the eradication of slavery and the accomplishments of the Civil Rights Movement” and that the court’s decision has the effect of allowing universities to use quotas for white applicants while continuing to discriminate against nonwhite ones. The justice wrote that “indifference to race will not advance constitutional equality, and it is clear that Congress understood this when it enacted the 14th Amendment and the Civil Rights Act.”

Conservative Justice Clarence Thomas slammed the justices who voted for the ban on racial preferences as hypocritical, noting that they rely on the same arguments that have been used by liberals against affirmative action in other cases. He also complained that the justices didn’t adequately explain why they believed the Constitution forbids using racial preferences.

But the majority opinion by Chief Justice John Roberts and the other justices who joined it is a significant setback for those who favor a more expansive understanding of the Constitution’s equal protection clause. Its supporters have argued that the clause was not intended to be colorblind but requires the government to use its power to prevent discrimination and promote equality. Sotomayor and Jackson’s opinions argue that the court’s interpretation of the 14th Amendment does not support this claim.

Justices Thomas and Jackson have staked out distinct visions of originalism, the legal philosophy that argues that the Constitution should be interpreted according to how lawmakers who wrote it understood its terms. They are the only justices who have attempted to make a serious argument that the Constitution does not support race-conscious admissions policies. Sotomayor and Jackson’s dissents make this point in detail. They criticize their colleagues’ “colorblind” arguments based on three quotes from 19th-century lawmakers who played only a limited role in the creation of the Constitution, proposed statutory language that never became law, and the iconoclastic work of two scholars.

New justice Ketanji Brown Jackson, who joined the court last year and sided with Sotomayor on these affirmative action cases, wrote that her colleagues’ “let-them-eat-cake obliviousness stops our collective progress toward the full realization of the 14th Amendment.” The dissent accused the majority of pulling the “ripcord on a race-conscious policy that has advanced constitutional equality.” “Deeming a policy as colorblind in law does not make it so in reality,” she added.