Is the composition of the Supreme Court the be-all and end-all of important societal conflicts?  Are there effective ways that conservatives can address these conflicts—manifest in political battles over such things as affirmative action—apart from the Court?

The Supreme Court’s decision in Fisher v. University of Texas, handed down on June 23, means affirmative action continues as public policy, with a divided Court ruling 4-3 that race-conscious admissions remain lawful under the Constitution’s Equal Protection Clause.  (Justice Antonin Scalia died before the case was decided, and Justice Elena Kagan recused herself.)  The decision maintains policies established by another divided SCOTUS in 2003 in two 5-4 decisions involving the University of Michigan.  In Gratz v. Bollinger, the Court struck down the University of Michigan’s undergraduate system of admissions, which at the time used a point system to give preferences to racial minorities.  But SCOTUS also upheld the University of Michigan Law School’s use of “race as a relevant feature within the broader context of a candidate’s application” in Grutter v. Bollinger.  The latter is considered a “holistic review” of college applicants.  In his Fisher majority opinion, Justice Anthony Kennedy wrote, “consideration of race is contextual and does not operate as a mechanical plus factor for underrepresented minorities.”  Rather, it is but a “factor of a factor of a factor” in “the holistic-review calculus.”  The ruling is likely to lead to more litigation, with critics seeking to narrow affirmative action on a school-by-school basis.  But it also calls into question a long-held conservative strategy that favors federal, not state, action to challenge the practice.

Affirmative action, for liberals, is a means toward the end of egalitarianism.  The policy originally sought to end discrimination in government employment but expanded into a quota system that taxpayer-funded universities use against Caucasian women such as Abigail Fisher, Jennifer Gratz, and Barbara Grutter.  Affirmative action also discriminates against Asian-Americans.  The University of Texas policy that led to Fisher sought to increase African-American and Hispanic enrollment while ignoring Asian-Americans, who have higher average SAT scores.  In amicus briefs, the Asian American Legal Foundation noted that

racial preferences in college admissions programs . . . discriminate against Asian-American applicants by deeming them overrepresented relative to their demographics in the population and thus less worthy of admission than applicants of underrepresented races.

The group further argued that

such discrimination imposes an admissions penalty on Asian Americans equivalent to hundreds of SAT points relative to Hispanic and African-American applicants, and a lesser, but still significant, admissions penalty relative to White applicants.

Bottom line: Affirmative action increases conflict between groups.

Conservative legal challenges to affirmative action in federal court are based on the assumption that courts will provide relief.  Fisher is one example.  Abigail Fisher applied for admission to the University of Texas’s 2008 freshman class.  A decade earlier, the Texas state legislature had enacted the Top Ten Percent Plan, which mandated that UT admit all Texas seniors who rank in the top ten percent of their high-school classes.  The plan came in response to the Fifth Circuit Court’s 1996 ruling in Hopwood v. Texas, a case brought by Cheryl Hopwood, a white woman, after she was denied admission to the University of Texas School of Law and sued because she believed she had been denied admission because she is white.  The Fifth Circuit had found that the law school may not use race as a factor in deciding which applicants to admit in order to increase diversity.  (Grutter later rescinded Hopwood.)  Fisher, a white student, was not in the top ten percent of her Texas high-school class, so her admission underwent a holistic full-file review that included the criterion of race.  Her application was rejected.  Writing his dissent in the Court’s upholding of affirmative action in Fisher, Justice Clarence Thomas observed that “a State’s use of race in higher education is categorically prohibited by the Equal Protection Clause.”

Yet state colleges and universities continue to use race as a criterion in evaluating prospective students, four decades after SCOTUS ruled in Regents of the University of California v. Bakke, the first landmark decision to decide affirmative action’s legality.  In Bakke, the Court upheld the practice but found California’s race quotas unconstitutional.

A premise of the conservative legal strategy is that Republican-appointed justices are more likely to end race-based admissions evaluations.  The flaw in this approach is that the justices who have upheld the practice were appointed by Republicans—justices such as Sandra Day O’Connor (Grutter) and Kennedy (Fisher).  Both were nominated by Ronald Reagan.  Conservatives have some room to challenge admissions policies at other schools, but it is the university, according to Kennedy, that “must assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.”  One doubts whether this evaluative process will occur at liberal-dominated institutions of higher learning.

Affirmative-action critics at the state level have taken a different approach: banning the practice through constitutional amendments.  These include California (1996), Washington (1998), Michigan (2006), Nebraska (2008), Arizona (2010), and Oklahoma (2012).  Michigan’s amendment banned state and other governmental entities from granting race-based preferences in several areas, including the admissions process for state universities.  The state-based approach has worked, and has even passed the scrutiny of the Supreme Court.  In Schuette v. Coalition to Defend Affirmative Action (2014), the Court upheld the people’s “privilege to enact laws as a basic exercise of their democratic power.”  Justice Kennedy himself, in his plurality opinion, observed that

Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raise difficult and delicate issues.

Instead of discrimination lawsuits that appeal to the Equal Protection Clause, the most effective means of ending the race-based discrimination of affirmative action has come from the states, where the people have shown a greater willingness to reject a controversial core belief of modern liberalism.

Incidentally, 18 states allow for constitutional amendments through the initiative process.