Affirmative Action: Judging on the Merits and Morals

Political scientists and journalists alike routinely conduct surveys to gauge public support for the Supreme Court’s rulings. It is not clear, however, whether the general public understands that the Supreme Court is the arbiter of constitutionality, not morals or policy efficacy. Most scholarly research has found that the public has a low understanding of the Court, its duty, and how to interpret its rulings. Therefore, survey results on the Court should be viewed with caution. Complex legal precedent makes it easy to conflate constitutionality with morality. Using the concept of affirmative action, I demonstrate how a policy can be unconstitutional but still considered to be moral or efficacious. I argue that such understanding is critical for future researchers to improve understanding of the public’s (mis)interpretations of the Supreme Court’s rulings and its role.

1. Introduction 

“To expect the court to roam in the field of morals may indicate a failure to take into account the limitations placed upon the Court both by our federal system and by the division of powers.”

 Samuel Stumpf (1952, 41)

The United States Supreme Court makes pivotal decisions that shape national law. While one could argue that it may be necessary to make judicial decisions with broad morals and values in mind, the Court’s duty is to make decisions that correctly interpret the Constitution, not to make moral decisions for the public to interpret and adopt (Stumpf 1952). The Framers of the Constitution intended for the judiciary to be insulated from politics because of the dangers associated with politically motivated judicial decisions, such as majoritarianism or tyranny (Hamilton 1788). Increased public scrutiny may have implications for the Court’s functioning, although the Court’s purpose has not changed, and understanding that the Court’s rulings are only to be interpreted on their constitutionality is important. Ideological politicization of the Court’s decisions poses a significant threat to the integrity of our legal system and the balance of power in our democracy (Clark et al. 2005), because it decreases the legitimacy of the Court’s ruling and leads to rulings based on ideology rather than constitutionality.

In this article, I will demonstrate why the public should not take Supreme Court rulings as decisions on morality or policy evaluations. In Section 2, I will establish that the public has limited knowledge of the Supreme Court and often misinterprets its duties. Based on survey results, I will show that the public routinely evaluates the Court based on their personal morals. In Section 3, with reference to the case of Plessy v. Ferguson, I will provide a historical example of why the Court’s decisions should not be seen as moral or policy evaluations. In Section 4, referring to several Supreme Court cases, I will detail key legal precedents of affirmative action over the past 80 years and show that the Court’s complicated history cannot be evaluated solely on constitutionality. In Section 5, I will examine the case of Students for Fair Admissions v. Harvard by evaluating the Supreme Court’s legal framework. Then, I will demonstrate that a commonly suggested alternative to affirmative action, diversity essays, is not suitable in university admissions, even though it is constitutional. Finally, in Section 6, I will conclude by providing a recommendation on how the public and other actors, such as politicians and policymakers, should evaluate policies, if not just on constitutionality. Additionally, I will emphasize the negative implications of evaluating policy solely based on its constitutionality for polling outcomes.

2. The Public and the Court

Since its inception, the Supreme Court has had the highest level of public support compared to other federal branches of government (Gallup 2024, Gibson et al. 2003, Ura and Wohlfarth 2010). The Court’s widespread popularity, however, has begun to waver since the turn of the century (Gallup 2024, Ura and Merrill 2017). While it may be enticing to blame politically polarized rulings for the Court’s wavering public support, many scholars attribute this more recent trend of wavering support to increased public awareness of Supreme Court rulings compared to prior decades (Baird and Gangl 2006). The increased accessibility to various news sources through the internet and hyper-politicization of these sources is a driving factor in causing the Court’s approval to decline (Hitt and Searles 2018). Diverging from historical norms, “the media now scrutinize[s] the machinations of justices’ decision-making” (Sinozich 2017, 190), but it remains “crucial for the Court to maintain a reputation from the public as impartial, trustworthy, and above the politics and bargaining that characterize Congress and the presidency” (Bartels and Johnson 2013, 184).

The growingly unfavorable view of the Court by the general public is not aided by the public’s lack of understanding of the Court’s duty. Most Americans have little knowledge of how the Supreme Court operates and what constitutes precedent (Gibson and Caldeira 2009). Article III, Section 2 of the United States Constitution outlines the scope of the judiciary: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority” (U.S. Const. art. III § 2). As applied, it vests the power of determining the constitutionality of actions in the federal court system, consisting of district courts, appellate courts, and the Supreme Court.

This is how the Supreme Court was designed to work. The Court has never been about judging morals or policy efficacy. Instead, its central question is always about constitutionality. While this function was clear to the Framers, this important nuance appears to be lost on the public. Instead, people tend to evaluate the Court based on shared ideology and whether the Court’s opinion aligns with individual moral beliefs about an issue (Hoekstra 2000, Mishler and Sheehan 1993, Mishler and Sheehan 1996, Mondak and Smithey 1997). As such, pollsters routinely ask questions about whether individuals support the Court’s rulings. It is common for surveyors to ask questions such as, “Would you like to see the Supreme Court overturn its decision?”^[1] The information gleaned from such polling ought to be viewed with dubiety.

Given respondents’ low awareness, one might expect high rates of nonresponse, but this is not the case. People freely give their opinion on Supreme Court rulings, and most scholarly research points to the fact that individuals’ assessments of the Court rely on their ideological alignment with the Court’s rulings.^[2] While it may seem inconsequential to emphasize that many Americans have little understanding of Supreme Court functionality, bench appointments and court rulings have been long campaigned by politicians. As such, Americans frequently form an opinion on judicial rulings of which they have little understanding. In the face of such opaque legal procedure, citizens must rely upon their existing values to assess policy. This makes it more likely that people assert the Supreme Court as the arbiter of morals, yet nowhere in Article III does the Constitution purport to grant the courts the power to make moral or policy evaluations.

3. Good Policies, Bad Policies, and Affirmative Action

Assessing if a policy is ‘good’ or ‘bad’ solely based on its constitutional determination by the Supreme Court has proven inadequate for centuries, and that trend persists today.^[3] While this may seem purely theoretical, this consideration is highlighted in issues of race relations, such as in Plessy v. Ferguson. In 1896, the Supreme Court crafted the “separate but equal” doctrine in Plessy v. Ferguson, which constitutionally permitted governmental segregation, as long as the separate accommodations provided for different racial groups were “equal.”^[4] This doctrine formally legalized separate bus seats, water fountains, restrooms, and public schools for use by Black people. The “equal” facilities that Black Americans were forced to use proved to be anything but equal.

The “separate but equal” doctrine was constitutional, yet it led to further discrimination against racial minorities and was inarguably a morally corrupt policy. It further perpetuated segregation, social stigmas, and the denial of civil rights to Black people. In practice, only separation, not equality, was achieved, and resources allocated to segregated facilities and services for African Americans were disproportionately less than those for white Americans. It was not until six decades later that the Supreme Court ruled that the principle of “separate but equal” was unconstitutional. In the landmark case of Brown v. Board of Education of Topeka, the Supreme Court ruled that “separate but equal” school segregation violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution because the facilities under the “separate but equal” doctrine were “inherently unequal” (Brown v. Board 1954, 11). Does this change of precedent mean that the “separate but equal” doctrine was good for six decades until the later Supreme Court decision rendered it bad? Clearly, the answer to this question is no. The notion of “separate but equal” did not change in its prescriptions, nor did its effects on society. The sole factor that changed was its relative constitutionality.^[5]

Questions of race and discrimination did not end with Brown. Legal challenges have persisted through the subsequent seven decades since the Brown ruling, ranging from questions about voting to those of school admissions, such as affirmative action. If Brown is the most famous example of morally bad policy being corrected, a similar but reversed scenario is present in the more recent Supreme Court case of Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (or “Harvard” for short). While the public may see Brown as a step forward in terms of progress and Harvard as a step back, the Supreme Court did not rule on how the policies in these cases advance or regress societal progress, but solely on constitutionality.

In 2023, the Supreme Court ruled in favor of the petitioner that affirmative action is unconstitutional in university admissions.^[6] However, that does not inherently mean that affirmative action is a bad policy. A dichotomous relationship where constitutional policies are good and unconstitutional policies are bad should not be established, even when the Supreme Court is the determiner of constitutionality. When ruling in Harvard, like the vast majority of cases, the Court’s duty was to determine whether affirmative action in university admissions is constitutional, not to decide whether it is a good or bad policy.

While the Supreme Court relies most prominently on constitutionality to dictate its rulings, in some rare instances, there are times when the Court must rely on moral philosophy to interpret the Constitution. As I demonstrated with Plessy and Brown, the Court can make decisions that we later evaluate as morally dubious at best because of the ever-changing tendencies of society. It follows that the inverse relationship is true. While reading the Court’s ruling in Harvard, individuals should bear in mind that the ruling does not inherently mean that affirmative action is bad, nor does it mean that the prior use of affirmative action was bad. The ruling simply asserts that affirmative action is now unconstitutional.

4. Origins of Affirmative Action and Its History in Court

Affirmative action is generally defined as the policy of favoring underprivileged societal groups to remedy the effects of past discrimination within higher education and the workforce.^[7] Since the 1960s, equity in higher education has been furthered through affirmative action policies. Throughout its history, scholarly debate surrounding affirmative action has focused on its constitutionality and effectiveness. Yet, at the same time, the general public tends to focus on a simpler notion of fairness to the applicants. Affirmative action being struck down as unconstitutional in Harvard has only led to more spirited political discourse, as evidenced by numerous public opinion polls.

In 1961, President John F. Kennedy issued Executive Order 10925 that required government contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin”  (Executive Order No. 10,925, 1961).^[8] This Executive Order protected the rights of the disadvantaged and minority workers employed by government contractors, but more importantly, it marked the implementation of affirmative action in the United States.

After Kennedy’s assassination, President Lyndon B. Johnson signed into law the Civil Rights Act of 1964, which had widespread public support (Kohut, 2020). In 1965, President Johnson signed Executive Order 11246 that “require[d] Government contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment” (Executive Order No. 11,246, 1965). This executive order was a “key landmark” in federal efforts to end racial discrimination (U.S. Department of Labor, n.d.).

While originally concerned with racial preference policies in the workforce, political debate around affirmative action eventually shifted toward its context in university admissions. The rise of affirmative action in the workforce bled into university admissions processes in the late 1960s (Steeh and Krysan 1996). Affirmative action gained more traction in higher education in the 1970s, being used by more universities. As a result, legal challenges arose over the constitutionality of affirmative action (Steeh and Krysan 1996).

The first legal challenge to affirmative action came when Marco Defunis sued the University of Washington Law School in 1971 after being denied admission. Defunis claimed that he was not accepted due to the university’s policy of “reverse racism” (Legal Information Institute, n.d.).^[9] The case rose through the court system to the Supreme Court; however, the case was moot because Defunis was allowed to attend and receive a degree from the law school (Legal Information Institute, n.d.). This case calls into question how people who conflate the ideas of good and constitutional policy would evaluate the University of Washington’s affirmative action policy because the case was resolved without a ruling on the policy’s constitutionality.

In 1978, the Supreme Court heard a similar case: Regents of the University of California v. Bakke. Alan Bakke was denied admission to the University of California Medical School at Davis twice, even though in both years he had a higher grade point average and test score than the vast majority of racial minority applicants admitted. Bakke claimed that he was denied admission solely due to his race and that the university’s racial quota system violated the Equal Protection Clause of the Fourteenth Amendment and the Civil Rights Act. The Supreme Court ruled in favor of Bakke, citing that the university’s racial quota system was unconstitutional.^[10] However, the Court also noted in their ruling that “the remedial use of race” as one of several admission factors is constitutionally permissible (Regents of the University of California v. Bakke 1978, 350). When ruling, the Court established that affirmative action would be evaluated under a strict scrutiny review, requiring the government to demonstrate narrowly tailored means to achieve their compelling interest (Regents of the University of California v. Bakke 1978).^[11] The Court’s ruling in the case of Regents of the University of California v. Bakke set the precedent of affirmative action’s relative constitutionality under strict scrutiny for decades.

Establishing a synonymous relationship between constitutionality and good policy is problematic for the case of Regents of the University of California v. Bakke. While the Supreme Court determined that stringent racial quotas are unconstitutional, many universities’ affirmative action policies after the ruling aimed to create a student body racially proportionate to the United States population.^[12] It would be flawed to say that post-Bakke affirmative action policies are good because they are constitutional and racial quotas are bad, because the intentions of the policies are the same. In Harvard, Students for Fair Admissions argued that Harvard discriminated against Asian Americans by admitting a low percentage of Asian Americans, and the Court agreed that the university’s policy embraced a racial quota (Harvard 2023).

Until the Supreme Court sweepingly ruled affirmative action unconstitutional in 2023, universities had been more or less attempting to enact racial quotas without using that term. Yet, because these policies were constitutional for five decades, did that make them good? This example makes it apparent why the constitutionality of a policy cannot determine if the policy is good or bad. Racial quotas and affirmative action have nearly identical intentions, but for decades, their constitutionality differed.

The constitutionality of affirmative action was put in front of the Supreme Court in another instance in the case of Grutter v. Bollinger in 2003. Barbara Grutter sued after she was denied admission to the University of Michigan law school, claiming that the university’s affirmative action policy, which asserted racial diversity as a “compelling interest,” violated the Equal Protection Clause of the Fourteenth Amendment (Grutter v. Bollinger 2003).^[13] The Supreme Court upheld the constitutionality of the University of Michigan law school’s “race-conscious admissions program [because it] does not unduly harm nonminority applicants” (Grutter v. Bollinger 2003, p. 309). The Court’s opinion noted that the University of Michigan law school’s compelling interest satisfies a strict scrutiny review. However, at the time of the ruling, they noted, “[t]he Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today” (Grutter v. Bollinger 2003, p. 310). The early 2000s mark the beginning of a time of stark divide of public opinion on affirmative action. Nonetheless, the Court upheld the precedent set in Regents of the University of California v. Bakke (Saad 2021).

In a similar case, in 2012, the Supreme Court heard the case of Fisher v. University of Texas. Abigail Fisher, an instate resident,^[14] sued the University of Texas after being denied admission, arguing that the affirmative action policies violated the Fourteenth Amendment’s Equal Protection Clause (Fisher v. University of Texas 2013). The Supreme Court determined that policies needed to be “precisely tailored to serve a compelling governmental interest,” and thus did not rule on their constitutionality because the lower courts had not done so. The Supreme Court remanded the case for a strict scrutiny review, which the lower courts had previously not done (Fisher v. University of Texas 2013). The case was reheard and eventually appealed to the Supreme Court in 2016. In a narrow 4-3 decision, the Court ruled that the university’s race-conscious admission policies did not violate the Equal Protection Clause (Fisher v. University of Texas 2016). They upheld the previous precedent that educational diversity is a compelling government interest. They also stated that no race-neutral alternatives could achieve the same interest.

The Supreme Court’s ruling in Fisher v. Texas once again outlines the issues associated with determining whether a policy is good or bad based on the policy’s constitutionality. The Court’s ruling in 2013 did not determine whether the University of Texas’s affirmative action policy was constitutional because it was not reviewed properly. The lower courts’ improper application of the constitutional test for strict scrutiny furthers why one should not conflate good and constitutional. Accordingly, this raises the question of whether the policy is good or bad, as the Supreme Court’s ruling solely determined that the lower courts failed to properly apply the test. Like lower courts, the Supreme Court is comprised of imperfect individuals. It is not unreasonable to expect that imperfect people can err in judgment from time to time, similar to how the lower courts did in Fisher. For instance, the Court may decide a policy to be constitutional when it truly is not, making those who conflate constitutionality with goodness believe it is a good policy when it is not. Like Bakke and Defunis, Fisher demonstrates the complicated and problematic questions that arise when affirming that constitutional policies are good and unconstitutional policies are bad.

5. Further Analysis of Students for Fair Admissions v. Harvard

Justice O’Connor opined on behalf of the majority in Grutter (2003 p. 310) that race preferences would no longer be necessary in 25 years. The Supreme Court struck down race-conscious admission policies and affirmative action as unconstitutional in the cases of Harvard and Students for Fair Admissions v. University of North Carolina after 20 years of contradicting precedent. The Supreme Court ruled that the race-based affirmative action policies in these cases were unconstitutional because the policies violated the Equal Protection Clause (Harvard 2023). Chief Justice John Roberts wrote in the Court’s opinion that the policies were not sufficient under a strict scrutiny review because they “lack[ed] sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points” (Harvard 2023, 39). The Supreme Court’s decision in these cases upended nearly five decades of precedent established in 1978.

For Harvard University’s policies to be deemed constitutional, as in previous cases, the Supreme Court had to determine whether the school’s affirmative action program satisfied strict judicial scrutiny. Ultimately, the Court ruled it did not. Because race-based affirmative action gives preference based on race, it seemingly violates the Equal Protection Clause, thus making it subject to strict judicial scrutiny. For race to be constitutionally accepted as a factor in university admissions, policies must be both narrowly tailored and furthering a compelling governmental interest (see United States v. Carolene Products Co. 1938, 152, fn. 4).

To be narrowly tailored, affirmative action policies must have no “race-neutral alternatives” that can achieve the compelling governmental interest (Sotomayor, dissenting, Harvard 2023, 28). In addition, even if the race-conscious policy is narrowly tailored to serve that interest, the policy must be a “temporary matter” (Grutter v. Bollinger 2003, 342) that is “limited in time” (309). Previously, courts have ruled that correcting for past governmental discrimination is a compelling government interest that satisfies a strict scrutiny review. This ruling allowed universities nationwide to use race-based affirmative action (Congressional Research Service 2023). On the contrary, courts have also ruled that rectifying past “societal discrimination” is not a compelling government interest that satisfies a strict scrutiny review (Congressional Research Service 2023).

The Supreme Court effectively determined in Harvard that university student body diversity is no longer a compelling governmental interest. While the majority did not explicitly state that it was no longer a compelling interest, the Court did state that:

[T]he interests that respondents view as compelling cannot be subjected to meaningful judicial review. Those interests include training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens. … It is unclear how courts are supposed to measure any of these goals, or if they could, to know when they have been reached so that racial preferences can end. The elusiveness of respondents’ asserted goals is further illustrated by comparing them to recognized compelling interests (Harvard 2023, 6).

Justice Neil Gorsuch’s concurring opinion specifically details how universities’ affirmative action policies violate Title VI of the 1964 Civil Rights Act, in addition to the Equal Protection Clause. Title VI “prohibits discrimination based on race, color, or national origin” in organizations that receive federal funding (Civil Rights Act 1964). Both public and private universities receive federal funding through student financial aid, research grants, work-study grants, veterans’ benefits, and more. The significant majority of universities nationwide that receive this funding cannot constitutionally use affirmative action policies because these policies violate Title VI, regardless of the policy’s motive.

The Supreme Court noted this finding in 1991 in the case of United Automobile Workers v. Johnson Controls, Inc., and Justice Gorsuch cites it in his opinion: “the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect” (United Automobile Workers v. Johnson Controls, Inc 1991). Justice Gorsuch also argues that the race-based affirmative action policies of Harvard University and the University of North Carolina violate Title VI, because neither university is debating whether these universities receive federal funding, consider race in admissions, and “intentionally treat some applicants worse than others at least in part because of their race” (Gorsuch, concurring, Harvard 2023, 5). Justice Gorsuch distinctly outlines these three elements, which show how universities’ affirmative action policies discriminate against some applicants due to their race and, therefore, violate Title VI of the Civil Rights Act.

How should universities’ past use of affirmative action be viewed? This question is naturally raised when assessing affirmative action based on its constitutionality in light of Harvard. The Supreme Court emphasized in past cases and in Harvard that policies that pass strict judicial scrutiny are not permanent (Grutter v. Bollinger 2003). Determining if a policy is good or bad on its constitutionality is troublesome when evaluating any policy with a limited lifetime due to the legal constraints of a strict scrutiny review. Affirmative action in university admissions was constitutional for decades and no longer is because the court ruled that student body diversity in universities is no longer a compelling interest. If one were to judge affirmative action solely on constitutionality, do they support affirmative action prior to it being ruled unconstitutional and oppose it afterward? This calls into question the legitimacy of determining if affirmative action is good or bad on its constitutionality because of the timeliness of strict scrutiny review.

6. Affirmative Action Alternatives

Chief Justice John Roberts noted in the majority opinion that an “applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” is constitutionally permissible (Harvard 2023). Diversity essays will allow applicants to discuss how they bring unique perspectives to college campuses through discussion of their race, religion, socioeconomic status, and other factors. Although applicants’ discussions of lived experiences are constitutional, this does not mean that it will be an efficient or effective policy, even if universities allow applicants to write diversity statements or essays.

One may wonder about the suitability of diversity statements as a replacement for affirmative action because of the Supreme Court’s constitutional ruling and administrative difficulties associated with diversity statements. Universities like Harvard and the University of North Carolina receive tens of thousands of applications from students annually, and having each applicant submit an extra essay creates a significant burden on admissions officers when reviewing applications in addition to the current exhaustive list of information the university evaluates when making admissions decisions. In past years, universities have identified an applicant’s race by the checkbox they selected, which is simpler to assess in comparison to diversity essays. Moreover, most universities will find it administratively unfeasible to incorporate diversity essays without expanding the number of admission officers or fundamentally altering their application review procedures in order to gauge the impact of an applicant’s background.

On the contrary, universities may interpret this constitutional alternative as an invitation to extrapolate an applicant’s race from diversity statements and use this information as a “plus” factor when making admission decisions (Harvard 2023, 2). If universities were to do so, diversity essays would effectively serve no purpose other than identifying an applicant’s race. The Supreme Court clearly expressed in its ruling that no proxies to race could be used, which then raises clear questions over the constitutionality of diversity essays because of how universities could use them in practice. If universities meritocratically and stylistically evaluated diversity statements and did not simply extrapolate an applicant’s race from them, then clear socioeconomic equity issues would be raised. Socioeconomically advantaged students and those in highly funded school districts have access to college counselors, who may aid applicants in advantageously crafting their diversity statements to show their societal disadvantages, regardless of whether the applicant indeed faces societal barriers due to their race.

While diversity essays may overcome baseline constitutional hurdles, it is unlikely that this approach will accomplish the main goals that affirmative action sought to achieve, namely, equity and diversity. In the context of university admissions, equity can be defined as ensuring equal opportunity to disadvantaged applicants to create an equal starting point, and diversity can be defined as the inclusion of students from varying backgrounds, experiences, and perspectives. Many universities have diversity, equity, and inclusion offices on their campuses to promote these values.^[15] Universities care about a diverse student body because it enhances the learning environment by allowing students to hear perspectives of students from different backgrounds. Affirmative action has promoted these values for decades. Although diversity essays will aim to achieve similar results, the inclusion of these essays hinders the application review process and has the potential to harm applicants with low socioeconomic status. Additionally, some applicants, like racial minorities, may not be comfortable sharing how they have been affected by societal disadvantages or how it has changed their lived experience because of peer pressure, privacy concerns, and other social pressures.

Affirmative action gave racial minorities a benefit in the application process to overcome historical barriers and inequities imposed on them due to their race. However, other disadvantaged groups who are prevented from going to universities, especially elite universities like Harvard, do not have affirmative action to help remove these obstacles. For example, socioeconomically challenged applicants face numerous disadvantages, including attending lower-funded school districts. In addition, socioeconomic status is a high determinant in a student’s Scholastic Aptitude Test scores and academic achievement was not the only factor that determined students’ scores (Dixon-Román et al. 2013). Discussion of an applicant’s socioeconomic status and how it challenged them can allow universities to enact policies, like socioeconomic status-based affirmative action, which the Supreme Court did not rule unconstitutional. However, for diversity essays to benefit a broader range of students than just racial minorities, universities would need not simply to use it as a proxy for race. Regardless of how universities implement diversity essays into their admissions processes, their efficiency and/or effectiveness will be hindered because of the complexities that arise when evaluating application essays.

Although productive arguments can be made by supporters and opponents of diversity essays, it cannot be definitively said that requesting such essays in university admissions is a good policy simply due to its constitutionality. As stated before, implementing diversity essays is administratively unfeasible and will likely not effectively promote university diversity comparably to affirmative, in addition to raising more equity concerns. If only evaluating affirmative action and diversity essays by their intended purpose, which is to promote diversity and equity in admissions, affirmative action is the better policy. The merits of diversity essays can be debated. However, they are less effective and efficient in promoting racial diversity and equity compared to affirmative action. Yet, affirmative action is unconstitutional, while diversity essays are constitutional. Affirmative action and other policies cannot solely be evaluated on their constitutionality because of the current politics within the judicial system, especially in regard to highly contested policies. It is evident through this comparison that deeming affirmative action a bad policy and diversity essays as a good policy is not easily justifiable.

7. The Case for Military Academies

The Supreme Court ruling in Harvard ended affirmative action in private universities, and their ruling in Students for Fair Admissions v. University of North Carolina ended affirmative action in public universities. However, neither of these cases made a definitive ruling on the future of affirmative action in military academies. The Supreme Court noted in their opinion that “[n]o military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present” (Harvard 2023, 22). One may wonder why the Court decided to exempt five universities out of thousands in such an all-encompassing ruling, considering that all prior rulings on affirmative action only applied to individual universities. There is not a clear explanation for the rulings’ vast applicability in the majority opinion.

Justice Sotomayor questions the Court’s exemption in her dissenting opinion, contesting that national security interests “cannot explain the Court’s narrow exemption, as [they] are also implicated at civilian universities” (Sotomayor, dissenting, Harvard 2023, 40). The Justice further argues that there being no military academy as a party in these cases is not a justification for this exemption because religious schools, like Georgetown University, are also not a party in these cases, yet “the Court does not similarly exempt [them] from its sweeping opinion” (Sotomayor, dissenting, Harvard 2023, 40). One could argue that religious universities satisfy a strict scrutiny review because their policies increase diversity and further their religious missions. Regardless of whether religious universities should have been exempt from the Court’s ruling, the military academies’ exemption from this ruling begs the question of whether the Supreme Court would rule affirmative action in that venue unconstitutional given the opportunity, especially considering that there is no prior precedent differentiating between public universities, private universities, and military academies.

In September 2023, Students for Fair Admissions sued the United States Military Academy at West Point, claiming that their affirmative action policies violated the Equal Protection Clause, similarly to many previous challenges to affirmative action. While the trial dates are pending, Students for Fair Admissions filed a request for an emergency injunction with the Supreme Court, which would prohibit West Point from considering race as a factor in admissions for the class of 2028. Their legal grounding for the injunction primarily relies on the Court’s ruling in Harvard. Moreover, Students for Fair Admissions claimed that West Point’s affirmative action policies discriminate more egregiously than Harvard’s policies. They note in their application that “West Point uses race to determine which office reviews applications, how many early offers it makes, and what scores applicants need to get” (Mortara et al. 2024, 3).

The government’s response from the Solicitor General argues that racial diversity is necessary to create an “effective fighting force” (Prelogar 2024, 3). The Solicitor General further argues that the civilian applications of Harvard do not apply to the military academies because West Point’s affirmative action policies serve the unique compelling public and government interest of national security (Prelogar 2024). In early February 2024, Justice Sotomayor referred the emergency request for injunction to the full Court, and later the same day the Court denied the request, stating that “the record before this Court is underdeveloped.”^[16] However, the Supreme Court noted in their denial that this “should not be construed as expressing any view on the merits of the constitutional question,” ultimately choosing not to answer the constitutional question placed before them.

Students for Fair Admissions also filed a lawsuit against the United States Naval Academy, claiming that the Naval Academy’s affirmative action policies are similarly unconstitutional. Unlike the lawsuit against West Point, the lawsuit against the Naval Academy will be heard in federal court in the latter half of 2024. Regardless of the district court’s ruling, the salience of the case means it will most likely be appealed to the circuit court and then the Supreme Court. Because of the Supreme Court’s explicit indecision (see footnote 4 in the majority opinion of Harvard) on affirmative action’s constitutionality for military academies in Harvard, this issue is especially ripe for review. The Court’s exemption in Harvard and subsequent dismissal of Students for Fair Admissions’ injunction request with West Point raises important questions about why diversity in the military academies differs from public and private universities and whether it is more valuable in that context.

Those that conflate constitutionality with goodness cannot adequately determine whether affirmative action is good or bad because it is unconstitutional in private and public universities but not in military academies. This raises the question of whether affirmative action is a good policy in military academies but a bad policy when in place at private and public universities. One can argue that national security is a compelling interest that would satisfy a strict judicial review for affirmative action. However, that does not speak to whether affirmative action in military academies is good or bad. Although the context of a policy can change whether it is viewed as a good or bad policy, affirmative action would advance diversity and equity in all university admissions, considering that the vast majority of university student bodies underrepresent racial minorities – especially in the graduating student population (Bowman and Denson 2022, Karabel 2006). Changing from constitutional to unconstitutional does not inherently change if a policy is good or bad or the reverse, especially when the policy has the same effects, only varying in degree. One can argue that national security is a compelling interest that would satisfy a strict judicial review for affirmative action. However, that does not speak to whether affirmative action in military academies is good or bad.

8. Conclusion

While affirmative action was constitutional for decades, starting with Bakke’s ruling, and continuing in Grutter, Fisher 2013, and Fisher 2016, Harvard undid this precedent. The Supreme Court’s ruling determined that Harvard University’s affirmative policies did not satisfy a strict scrutiny review because the policies were not timely, nor were the policies narrowly tailored. The Court’s ruling must not be construed as one based on morality or policy efficacy, as it is not consistent with their ruling in Harvard and the prior cases. It is crucial to realize that Harvard was the newest case in the Supreme Court’s never-ending affirmative action saga, though it will most likely not be the last due to the highly contested nature of affirmative action. Universities are uniquely positioned to foster diverse environments, which the Court has previously recognized as constitutional. However, now, they must seek alternative approaches that align with the Court’s strict scrutiny standard in Harvard.

As an individual, I may normatively disagree with the Court’s decisions on moral grounds – i.e., I can hold the opinion that affirmative action is a good policy, and it is a detriment to society to see it effectively outlawed.^[17] However, I can also hold the view that the constitutional backing of such policies is relatively thin. These are not mutually exclusive positions. Affirmative action, when in effect, was a morally good policy. It promoted diversity, “leveling the playing field” for underrepresented groups. However, as Justice O’Connor wrote in 2003, its constitutional limitations were defined by time and progress. It should not be surprising, then, that the practice has been overturned.

The Court has a sound legal framework to rule affirmative action unconstitutional. It violates the Equal Protection Clause and the Civil Rights Act. Regardless of one’s opinion on affirmative action, it is essential to understand the Supreme Court’s duty when evaluating the institution and their rulings. Decoupling the idea of the Court from the arbiter of morality will allow for more nuanced public activism that does not depend on the (sometimes unpredictable) decisions of an unelected body of nine people.

The general public, policymakers, and leaders should assess if a policy is good or bad on numerous criteria, including effectiveness, efficiency, feasibility, underlying values, etc. The constitutionality of policies is a crucial factor when evaluating policy, and it should be considered. However, it must be considered alongside a plethora of other evaluative, sometimes moral, criteria. Doing this will prevent the Supreme Court from taking on the role of legislators and unduly swaying voters’ opinions when assessing referendums and candidates for office.

Pollsters across the country have gauged public opinions on affirmative action. However, there has been a concerningly broad range of levels of public support for the policies. Because of this plurality of opinions, it is difficult to say what Americans really think about the issues. A potential cause is the lack of uniformity. There is a wide variety of terminology and question-wording used to gauge public support. Some pollsters ask if the Supreme Court made the right decision in Harvard. This question will most likely gauge whether respondents agree with the Supreme Court decisions, but it tells us nothing about whether respondents think affirmative action is a good or bad policy. Some respondents may disagree with the Supreme Court’s ruling on moral objections but still acknowledge that their legal reasoning is sound. Other respondents may disagree with the Court’s ruling due to legal objections but still oppose affirmative action.

This is not good for survey research where consistency is key. When conducting future surveys on affirmative action and other court-related policies, pollsters should refrain from conflating support for the Supreme Court’s decision with support for the underlying policy in order to obtain an accurate understanding of public support. In addition, future scholars should examine how terminology and question-wording affect affirmative action polling due to the significant variance in survey results.

Acknowledgments

I want to thank Dr. Tristan Hightower and Dr. Greg Deinert for their guidance and support throughout this process. I am deeply grateful for their encouragement, insights, and feedback. Their mentorship was invaluable. This article would not have been possible without them.

References

Bacchi, C. L. (1996). The Politics of Affirmative Action: ‘Women’, Equality and Category Politics. Sage.

Baird, V. A., and Gangl, A. (2006). Shattering the Myth of Legality: The Impact of the Media’s Framing of Supreme Court Procedures on Perceptions of Fairness. Political Psychology, 27(4), 597-614.

Bartels, B. L., and Johnston, C. D. (2013). On the Ideological Foundations of Supreme CourtLegitimacy in the American Public. American Journal of Political Science, 57(1), 184–199. http://www.jstor.org/stable/23496551.

Bowman, N. A., and Denson, N. (2022). Institutional Racial Representation and Equity Gaps in College Graduation. The Journal of Higher Education, 93(3), 399-423.

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

Caldeira, G. A. (1986). Neither the Purse nor the Sword: Dynamics of Public Confidence in the Supreme Court. American Political Science Review, 80(4), 1209-1226.

Civil Rights Act, 6 U.S.C. § 2000e (1964).

Clark, T. S., Lax, J. R., And Rice, D. (2015). Measuring The Political Salience of Supreme Court Cases. Journal Of Law And Courts, 3(1), 37-65.

Congressional Research Service. (2023, June 30). Equal Protection: Strict Scrutiny of Racial Classifications. Congressional Research Service. Retrieved May 3, 2024, from https://crsreports.congress.gov/product/pdf/IF/IF12391/3.

Dixon-Román, E. J., Everson, H. T., and McArdle, J. J. (2013). Race, Poverty and SAT Scores: Modeling the Influences of Family Income on Black and White High School Students’ SAT Performance. Teachers College Record, 115(4), 1-33.

Exec. Order No. 10,925, 3 C.F.R. 294 (1961).

Exec. Order No. 11,246, 3 C.F.R. 294 (1965).

Fisher v. University of Texas, 570 U.S. 297 (2013).

Fisher v. University of Texas at Austin, 579 U.S. ___ (2016).

Gallup. (2024). “Do you Approve or Disapprove of the Way the Supreme Court is Handling Its Job?” Gallup Historical Trends.

Gibson, J. L., Caldeira, G. A., and Spence, L. K. (2003). Measuring Attitudes toward the United States Supreme Court. American Journal of Political Science, 47(2), 354–367. https://doi.org/10.2307/3186144.

Gibson, J. L., and Caldeira, G. A. (2009). Knowing the Supreme Court? A Reconsideration of Public Ignorance of the High Court. The Journal of Politics, 71(2), 429-441.

Grutter v. Bollinger, 539 U.S. 306 (2003).

Hamilton, A. (1788). Federalist 78.

Hitt, M. P., and Searles, K. (2018). Media Coverage and Public Approval of the US Supreme Court. Political Communication, 35(4), 566-586.

Hoekstra, V. J. (2000). The Supreme Court and Local Public Opinion. The American Political Science Review, 94(1), 89–100. https://doi.org/10.2307/2586382.

Karabel, J. (2006). The chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton. Houghton Mifflin Harcourt.

Kohut, A. (2020). From the Archives: 50 Years Ago: Mixed Views about Civil Rights but Support for Selma Demonstrators.

Legal Information Institute. Marco DeFUNIS et al., Petitioners, v. Charles ODEGAARD, President of the University of Washington. (n.d.). Law.Cornell.Edu. Retrieved February 9, 2024, from https://www.law.cornell.edu/supremecourt/text/416/312.

Mishler, W., and Sheehan, R. S. (1993). The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions. American Political Science Review, 87(1), 87-101.

Mishler, W., and Sheehan, R. S. (1996). Public Opinion, the Attitudinal Model, and Supreme Court Decision Making: A Micro-Analytic Perspective. The Journal of Politics, 58(1), 169-200.

Mondak, J. J., and Smithey, S. I. (1997). The Dynamics of Public Support for the Supreme Court. The Journal of Politics, 59(4), 1114-1142.

Mortara, A. K., McCarthy, T. R., Norris, C. T., Hasson, J. F., and Anderson, R. G. (2024). Supreme Court of the United States. Emergency Application for an Injunction Pending Appellate Review (No. 23A_____).

Oppenheimer, D. B. (1995). Understanding Affirmative Action. Hastings Const. LQ, 23, 921.

Persily, N., Citrin, J., and Egan, P. J. (2008). Public Opinion and Constitutional Controversy. Oxford University Press.

Plessy v. Ferguson, 163 U.S. 537 (1896).

Prelogar, E. B. Office of the Solicitor General. (2024). Response in Opposition to the Emergency Application for an Injunction Pending Appellate Review (No. 23A696).

Saad, L. (2021, July 30). Americans’ Confidence in Racial Fairness Waning. Gallup News. Retrieved May 3, 2024, from https://news.gallup.com/poll/352832/americans-confidence-racial-fairness-waning.aspx.

Scheb, J. M., and Lyons, W. (2000). The Myth of Legality and Public Evaluation of the Supreme Court. Social Science Quarterly, 928-940.

Sinozich, S. (2016). Public opinion on the US Supreme Court, 1973-2015. Public Opinion Quarterly, 81(1), 173-195.

Steeh, C., and Krysan, M. (1996). Trends: Affirmative Action and the Public, 1970-1995. The Public Opinion Quarterly, 60(1), 128-158.

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 265 (2023).

Stumpf, S. E. (1952). The Moral Element in Supreme Court Decisions. Vand. L. Rev., 6, 41.

United Automobile Workers v. Johnson Controls, 499 U.S. 187 (1991).

United States v. Carolene Products Co., 304 U.S. 144 (1938).

Ura, J. D., and Merrill, A. H. (2017). The Supreme Court and Public Opinion. The Oxford Handbook of US Judicial Behavior, 435-7.

Ura, J. D., and Wohlfarth, P. C. (2010). “An Appeal to the People”: Public Opinion and Congressional Support for the Supreme Court. The Journal of Politics, 72(4), 939-956.

U.S. Const. Amend. XIV.

U.S. Const. Art. III, § 2U.S. Department of Labor. (n.d.). Executive Order 11246 – Equal Employment Opportunity. U.S. Department of Labor. Retrieved May 3, 2024, from https://www.dol.gov/agencies/ofccp/executive-order-11246/ca-11246.

Wijesundara, A. (2024). Reconciling Concern for Fair Equality of Opportunity and Strong Affirmative Action. The Philosophy, Politics, and Economy Review, (3), 42-53.

YouGov. (2022). “Do you Generally Support or Oppose Affirmative Action in College Admission?” Daily Survey: Affirmative Action.