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In the same week that U.S. Supreme Court Justice Stephen Breyer announced his retirement and President Joe Biden stated that he would nominate a Black woman to succeed him, the high court agreed to hear two legal challenges to affirmative action in college admissions.

In doing so, the justices indicated that they are willing to consider overturning court precedents upholding race-conscious admissions policies. The key precedent is Grutter v. Bollinger in 2003, in which the court held that the University of Michigan Law School’s consideration of race in admissions was allowable because it met the court’s test of strict scrutiny – that is, the consideration of race was “narrowly tailored” to further “a compelling interest.”

The compelling interest was identified as “obtaining the educational benefits that flow from a diverse student body.” In a later case on the same issue, Fisher v. University of Texas in 2016, the court upheld consideration of race in undergraduate admissions with the same justification: the policies were “narrowly tailored.”

There’s an obvious tension between the constitutional guarantee that each individual has a right to equal protection under the law, and six decades of the courts allowing equal protection under the law to be denied to some individuals for the sake of broader public goals.

The Supreme Court will hear two cases brought by a nonprofit group called Students for Fair Admissions. The SFFA is suing Harvard and the University of North Carolina – one a private college, one a state school – over admissions processes that the group contends discriminate against Asian American applicants.

The schools deny that they discriminate in any way that’s illegal. Lower courts have upheld the schools’ policies of using race in admissions, citing Supreme Court precedents.

But those precedents could be overturned. The justices are expected to hear the SFFA cases, now consolidated into one case, during the term that begins in October. Affirmative action could be ruled unconstitutional as early as next year.

The Biden administration had urged the Supreme Court not to hear these cases, contending that the standard hasn’t been met for the Supreme Court to overturn a legal precedent. In a friend-of-the-court brief filed in the SFFA’s lawsuit over Harvard’s affirmative action policy, the administration argued, “This Court always demands a ‘special justification,’ over and above the belief ‘that the precedent was wrongly decided,’ before reversing one of its decisions.”

But the administration’s lawyers cited a case from 2020, Allen v. Cooper, for their assertion that the court “always” needs a special justification to overturn a precedent.

There’s nothing in the Constitution that says the Supreme Court needs a “special justification.” There’s no mention, let alone definition, of “special justification,” “strict scrutiny,” “compelling interest,” “narrow tailoring” or any of the balancing tests that the justices have developed over the last hundred years to determine which violations of constitutional rights are allowable, or mandatory.

The standards are surprisingly subjective, stemming from the fact that the Constitution’s Bill of Rights did not originally restrict state governments in any way. Gradually over the course of the 20th century, the justices of the Supreme Court found ways to interpret more rights into the document than any state legislature had ratified. Just to take one example, the right to a jury trial in all criminal cases was not guaranteed in state courts until 1968, when the high court ruled in Duncan v. Louisiana, “trial by jury in criminal cases is fundamental to the American scheme of justice,”  and therefore applicable to the states through the Fourteenth Amendment.

It certainly took a long time to come to that conclusion. The Fourteenth Amendment was ratified a hundred years earlier, in 1868.

If you’re interested in the history of how the Supreme Court gradually applied the provisions of the Bill of Rights to the states and invented its multiple levels of “scrutiny” tests, look up McDonald v. Chicago, the 2010 case in which the court held that the Second Amendment right to keep and bear arms is “fundamental” and therefore applies to the states through the Fourteenth Amendment. How is it that the nation didn’t find this out until 2010? The complete history is related in the syllabus, or headnote, published by the court just ahead of the text of the opinion.

 

The short version of the history is that the court overrode the constitutional structure to limit the powers of the states, often for very good reasons, but in a manner that disguised subjective judgment as complex legal reasoning. Fine distinctions are drawn between a “compelling” reason and a merely “rational” one, between a “fundamental” right and whatever a non-fundamental right is called. The fact remains that what is “compelling” or “fundamental” to one justice may not be to another.

 

The problem with resting constitutional rights on subjective judgment is evident whenever a Supreme Court justice retires and the country goes to battle stations over the next nomination, seen as a fight over whether the Constitution will be interpreted to change national policy. Everyone seems to have forgotten that the Constitution has a process for constitutional amendments. The framers never envisioned that the American people would stand around on the steps of the Supreme Court and wait to find out what new national policies would be enacted through landmark decisions.

Affirmative action could be ruled unconstitutional. And one vote may be cast by a justice in a chair now reserved for someone of a particular race and gender.

Write Susan at Susan@SusanShelley.com and follow her on Twitter @Susan_Shelley.

This content was originally published here.

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