What the Supreme Court justices have said on affirmative action and race

12 min

In several cases dating back to the 1970s, the Supreme Court has upheld the limited use of race in college admissions to build a diverse student body. But those narrow majorities have been replaced by a more conservative bloc of six, including three justices picked by President Donald Trump, and the court will hear two college admissions cases on Oct. 31. The three Trump nomineesalong with Justice Ketanji Brown Jackson, who was nominated by President Biden do not have extensive records on cases involving racial preferences from their tenures as appeals court judges.

Here’s what the justices have said or written about affirmative action and race-conscious policies, starting with the chief justice and then in order of seniority.

Chief Justice John G. Roberts Jr.

Roberts has questioned race-conscious government policies since his time as a young lawyer in the Reagan administration, where he took a skeptical view of the Voting Rights Act.

His criticisms quickly became part of his record at the Supreme Court. During his first term, he dissented in a case about drawing congressional districts to favor the ability of minority groups to elect a candidate of their choice. “I do not believe it is our role to make judgments about which mixes of minority voters should count for purposes of forming a majority in an electoral district,” Roberts wrote, adding, “It is a sordid business, this divvying us up by race.”

Roberts dissented in 2016 when the court upheld the limited use of race in admission decisions at the University of Texas. He wrote the landmark decision in Shelby County v. Holder that struck the heart of the Voting Rights Act, a provision in which Congress decided which states were subject to the requirement that election law changes be approved in advance by the Justice Department or federal judges.

And in a decision that struck down voluntary desegregation plans in Seattle and Louisville, Roberts limited the role race can play in making student assignment decisions. He relied on 1954’s Brown v. Board of Education, which ended public school segregation. “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin,” Roberts wrote. “The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again — even for very different reasons.”

He added, in perhaps his most famous comment on the subject: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Justice Clarence Thomas

Thomas has mostly advocated for a “colorblind” view of the Constitution that sees almost all government considerations of race to be a form of racial discrimination.

He dissented when the court upheld the limited use of race in college admissions in Grutter v. Bollinger in 2003. “Like [Frederick] Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators,” Thomas wrote. “Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School. The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination.”

When the court approved a similar program at the University of Texas 13 years later, Thomas said in a dissent that Grutter should be overturned.

“The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all,” he wrote. “That constitutional imperative does not change in the face of a ‘faddish theory’ that racial discrimination may produce ‘educational benefits.’ ”

On a personal level, Thomas — the second Black man to serve on the Supreme Court — acknowledged that racial preferences played a role in his recruitment to College of the Holy Cross and admission to Yale Law School. But he contends it cost him when he failed to receive a job offer as a lawyer. “Now I knew what a law degree from Yale was worth when it bore the taint of racial preference,” he wrote in his memoir, “My Grandfather’s Son.” “I was humiliated — and desperate.” (Black classmates of Thomas’s who received offers from big law firms disagreed with his assessment.)

Justice Samuel A. Alito Jr.

Alito joined Roberts’s opinion in the Seattle and Louisville cases, has supported narrowing the Voting Rights Act’s application to election procedures and majority-minority congressional districts, and has been a consistent vote against affirmative action.

While he has not joined Thomas’s call to overturn Grutter, he wrote the lead dissent in the University of Texas case.

What is not at stake is whether UT or any other university may adopt an admissions plan that results in a student body with a broad representation of students from all racial and ethnic groups,” Alito wrote. “What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve ‘the educational benefits of diversity,’ without explaining — much less proving — why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives.”

Alito said the majority’s conclusion that UT had met its burden is “remarkable — and remarkably wrong.”

Justice Sonia Sotomayor

Sotomayor, the Supreme Court’s first Latina justice, has established herself as an outspoken advocate of affirmative action as both a personal and legal matter.

She has called herself a “perfect affirmative action baby” — raised in New York housing projects where English was not her family’s primary language. Her test scores alone probably would not have merited her admission to Princeton and Yale Law School, she said. “The question is not: How did I get in? It’s: What did I do when I got there?” she said in a 2018 speech. “And with pride, I can say I graduated at the top of my class.”

Sotomayor was in the majority in the court’s University of Texas decision, and she dissented when the court ruled that Michigan voters had the authority to forbid the university system from considering race in admission decisions.

She wrote that she prefers the term “race-sensitive admissions policies” to “affirmative action,” and directly confronted Roberts’s statement in the Seattle case.

“The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination,” Sotomayor wrote. “As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.”

Justice Elena Kagan

Kagan, on the court since 2010, has not participated in its cases on affirmative action, most likely because she played an advocate’s role as President Barack Obama’s solicitor general before she became a justice.

But she seemed to support affirmative action objectives while serving in the administration of President Bill Clinton, and during her tenure at the Justice Department, the agency filed an amicus brief on behalf of the University of Texas.

Kagan has been a steadfast defender of a robust reading of the Voting Rights Act. During oral arguments earlier this month, she said it was “one of the great achievements of American democracy to achieve equal political opportunities regardless of race, to ensure that African Americans could have as much political power as White Americans could.”

She has written stinging dissents to the court’s decisions that make it harder to use that law to challenge state election laws, including in a 2021 case.

“If a single statute represents the best of America, it is the Voting Rights Act,” Kagan wrote, adding: “If a single statute reminds us of the worst of America, it is the Voting Rights Act. Because it was — and remains — so necessary.”

Justice Neil M. Gorsuch

Gorsuch dissented in April when the Supreme Court allowed a prestigious high school in Virginia to continue, for now, an admissions policy that administrators said opened the magnet program to a wider socioeconomic range of students. Gorsuch, along with Alito and Thomas, would have granted the request from a parents group to suspend the policy at Thomas Jefferson High School for Science and Technology, which challengers said discriminates against Asian American students. The dissenters did not explain their disagreement, which is not unusual in emergency applications.

In 2020, Gorsuch wrote for the majority when the court ruled that Title VII of the Civil Rights Act protects gay and transgender employees from workplace discrimination. Gorsuch relied on the text of the statute — rather than the legislative intent or purpose — to reach that result.

“To ‘discriminate against’ a person, then, would seem to mean treating that individual worse than others who are similarly situated,” Gorsuch wrote.

Some legal scholars say the rationale Gorsuch used in that opinion could be applied to eliminate the consideration of race from college admissions.

Justice Brett M. Kavanaugh

As a lawyer in private practice, Kavanaugh wrote an amicus brief with conservative lawyer Robert H. Bork in a case challenging a race-based voting qualification in Hawaii. In a Wall Street Journal column, Kavanaugh characterized as a “naked racial-spoils system” the state’s requirement that only Native Hawaiians vote for trustees of a state office. He quoted Justice Antonin Scalia, the late conservative, in urging the court to follow the principle that “under our Constitution there can be no such thing as either a creditor or debtor race. … In the eyes of government, we are just one race here.”

Kavanaugh was serving then as an advocate, not a judge. On the bench, he has made a concerted effort to hire young lawyers from diverse backgrounds to work with him as law clerks and signaled in his rulings a sensitivity to racial discrimination.

As an appellate court judge in 2012, in a case reviewing a South Carolina voter identification law, Kavanaugh wrote that “Racial insensitivity, racial bias, and indeed outright racism are still problems throughout the United States as of 2012. We see that reality on an all-too-frequent basis. The long march for equality for African-Americans is not finished.”

But civil rights advocates said Kavanaugh’s rhetoric was less significant than the ruling, which delayed, but still allowed for, the ID requirement that the Justice Department said would have a disproportionate impact on Black voters.

Justice Amy Coney Barrett

In response to questions during her 2020 confirmation hearings, Barrett talked about persistent racism in the United States and the death of George Floyd, the Black man whose murder at the hands of police sparked protests across the country. She called the issue highly personal and difficult, and part of an ongoing conversation, noting that she is the mother of two Black children adopted from Haiti. But she declined to opine on policy or legal solutions.

“I think it is an entirely uncontroversial and obvious statement, given as we just talked about the George Floyd video, that racism persists in our country,” Barrett said.

“As to putting my finger on the nature of the problem, whether as you say it’s just outright or systemic racism, or how to tackle the issue of making it better, those things are policy questions — hotly contested policy questions.”

Justice Ketanji Brown Jackson

Jackson, the first Black woman to serve on the Supreme Court, recused herself from the case testing Harvard’s admissions practices; she served until May on the governing board of her alma mater, where one of her daughters is enrolled. She will, however, participate in a separate case examining the University of North Carolina’s policy.

While Jackson has not previously ruled in an affirmative action case, she has faced questions about her views. As a candidate to join the Harvard board in 2016, she declined to comment on the school’s admissions policy in a campaign survey, citing her role as a federal judge who might someday have to rule on the issue.

As a nominee for the U.S. District Court in Washington, Jackson was asked by Sen. Ted Cruz (R-Tex.), her Harvard Law School classmate, about the high court’s past rulings on affirmative action and whether the “use of racial preferences will no longer be necessary” in future years, as the court majority said in Grutter.

Jackson said in a written response that she would adhere to court precedent, adding, “I have no particular insight into the future need for, or ramifications of, the continued use of race in admissions.”

*The cases the Supreme Court will hear on Oct. 31 are: Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina.

Illustrations by Shelly Tan.

More on race in education

The latest: The Supreme Court heard oral arguments Monday on the race-conscious admissions policies at Harvard University and UNC-Chapel Hill. Conservative Supreme Court justices seemed open to ending the use of affirmative action in admission decisions, repeatedly expressing doubt that the institutions would ever concede an “endpoint” in their use of race to build diverse student bodies.

What happens next? The court will rule on the legality of using race as a factor in college admissions. The court can publish its rulings at any time, but because of the significance of this case, the justices will likely wait to finalize their opinions until the end of the term in late June or early July.

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What has happened in schools? A Maryland school apologized after a viral video showed White students singing the n-word. A Brigham Young University investigation found no evidence that a fan yelled racial slurs at a Duke volleyball player.