
This is one of Vox's Future Perfect predictions for 2023; they give it a 70% probability.
My colleague Ian Millhiser listened to the oral arguments in the Students for Fair Admissions cases challenging affirmative action at both the University of North Carolina and Harvard, and left persuaded that explicit racial preferences for admission are a goner: “Even if one of the conservative justices who expressed some reservations today surprises us,” he wrote, “that would still likely leave five votes teed up against affirmative action.”
That makes sense. As Millhiser notes, there are six Republican appointees on the Court today, all by presidents opposed to affirmative action and all reared in a conservative legal movement where opposition to the policy is taken for granted. Even the most comparatively moderate of them, Chief Justice John Roberts, is famously hostile to considering race in attempts to address past discrimination.
The reason I’m not more confident is due to a nuance Millhiser noted, which is that Roberts appeared open to racial preferences at military academies, noting the federal government’s argument that the military needs a diverse officer corps to succeed. If such a carve-out is included in the ultimate ruling, my prediction here will be wrong: I’m predicting they’ll strike down affirmative action across the board at public or publicly funded institutions.
(Vox)
Resolves according to Vox Future Perfect's judgment at the end of the year.
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