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The Supreme Court kicks away the ladder

Aug 03,2023 - Last updated at Aug 03,2023

In an opinion drafted by Chief Justice John Roberts, the Court rejected race-conscious admissions policies at Harvard (Obama’s law school alma mater) and the University of North Carolina on the grounds that they “cannot be reconciled with the guarantees of the Equal Protection Clause” of the Fourteenth Amendment. The dissenting opinion was, fittingly, delivered by Justice Sonia Sotomayor, an Obama appointee, and the first Supreme Court justice of Latin American origin. Sotomayor lamented that the decision “rolls back decades of precedent and momentous progress”.

Judging by the experience of even liberal states like Michigan and California (two of nine to already have rejected affirmative action), the Court’s decision is likely to lead to a sharp drop in the number of Black and Latino students at the undergraduate level, as well as at professional schools. It also opens policies like corporate diversity programmes, which ramped up after the murder of George Floyd in 2020, to judicial scrutiny.

After the Dobbs ruling last year eliminated the constitutional right to abortion, this is the second time that the court has upended years of jurisprudence on a highly charged issue (it has also, recently, upheld the right to discriminate against the LGBTQ community). Notably, in all these cases, nothing material has changed — save for the composition of the Court.

Conservatives’ reaction to the affirmative action ruling has been rousing, with endorsements pouring in from Mike Pence, Ron DeSantis, Nikki Haley, and with much of the credit going to Donald Trump (who appointed three of the six conservative justices). Conservatives have played the long game, especially on court appointments, and now they are reaping the rewards of their finely tuned ideological machine. President Joe Biden described it as “not a normal court’.

The ruling strikes at the heart of the American dream: the promise of equality of opportunity, of which the American university has long been a custodian. Education has always been critical for what social scientists call the “matrix of mobility” precisely because of its ability to allow individuals to leapfrog into a different life, regardless of their background, and typically with significant spillover effects for their family and community. Admission to elite schools, in particular, is one of the few ways that the meritorious can challenge inherited privilege.

According to Roberts, a “judiciary that picks winners and losers on the color of their skin” is morally odious. But, as Sotomayor noted in her dissent, history had already done that. Affirmative action was introduced in the 1960s in the United States as a means of advancing racial equality against the backdrop of that history. The purpose was to achieve substantive, rather than procedural, justice. The “colorblind” law that Roberts idealises can work only in societies with no racial discrimination, not in settings where it is rampant.

The classic treatise The Shape of the River rigorously documents the role of affirmative action policies as an engine of social mobility, but, anecdotally, the success of America’s top universities is clearly visible. As an academic who has spent my career on both sides of the Atlantic, I have found the diversity of the lectures and seminars, faculty lounges, and fellowship classes of Stanford, Harvard, and Columbia, for example, to be unique. The normalisation of racial diversity has arguably strengthened the world’s best university system (as evidenced by its near-monopoly on, say, Nobel Prizes).

The benefits of the diversity in American education speak for themselves, but none more eloquently than Obama. There could be no more poignant illustration of what affirmative action achieved than the Obama presidency. A highly visible symbol of the racial gap created by centuries of oppression, the domination of the White House by white men, was torn down after just a few decades of limited legal protection.

Obama, raised by a single mother in a family of humble means, has been candid in Dreams From My Father and elsewhere about the “lost years” of his youth, which may have led to his graduating from Columbia without honors. In an admissions decision that changed the course of history, it was the positive discrimination of Harvard Law School that led to his being “found”: he graduated magna cum laude.

Legal scholars debate whether “law matters”. It does, but not always in a good way. It was the law that underwrote slavery and segregation. And it was the law that afforded us, in 2008, a moment of blinding hope.

Michelle Obama, who graduated from Princeton, described affirmative action as providing “ladders of opportunity”. Without the ladder of affirmative action, her husband’s ascent may have been impossible. The educational potency of symbols that we can see (and occasionally even touch) is singular.

Obama’s story provided inspiration to many of us that the climb, however steep, was worth the effort, even as we witnessed others take the elevator. Perhaps it was the possibility embodied in Obama’s meteoric ascent that led the Court’s conservative majority to kick the ladder away.


Antara Haldar, associate professor of Empirical Legal Studies at the University of Cambridge, is a visiting faculty member at Harvard University and the principal investigator on a European Research Council grant on law and cognition. Copyright: Project Syndicate, 2023.

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