For the season finale, we're joined by Yale law professor Justin Driver to talk about his new book, "The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education." We discuss the conservative cases for and against affirmative action, the post-SFFA world of university admissions, the promise and limits of colorblindness, and the effects of admissions policies on students' sense of belonging.
For the season finale, we're joined by Yale law professor Justin Driver to talk about his new book, "The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education." We discuss the conservative cases for and against affirmative action, the post-SFFA world of university admissions, the promise and limits of colorblindness, and the effects of admissions policies on students' sense of belonging.
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, this is it, Will. I believe this is going to be our final episode of Season 5.
Will: Not of the show, just of Season 5.
Dan: Well, I hope, that's up to you, but record breaking 28 episodes.
Will: Yeah. We're going to go out with a bang.
Justin: Yes.
Dan: So, today is another one of our guest episodes, another one of our book episodes. So, today we are joined by friend of the show, Professor Justin Driver, who is the Robert R. Slaughter Professor of Law, who is here with us to talk about his book, The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education, which just released, is it three weeks ago?
Justin: Yeah, September 16th was the pub date.
Dan: Okay. So, Justin, I've actually gotten to see you talk about this book a couple times in the last two weeks after not getting a chance to see you for years, you were here in St. Louis doing some events. And then we did the SCOTUSBlog Summit in DC last week, which I thought was a very interesting event. Got to hear some remarks from Justice Barrett. We learned some things about her, like the fact that she used to do CrossFit. Is this news or not? Did you know that, Will?
Will: I did not know that. I got to talk to her about her workout routine.
Dan: Yeah, she was being interviewed by Judge Bumatay, and he asked some substantive things, but also got some slice of life type questions in. And we did learn that she misses her CrossFit gym from South Bend. So, use that data point as you will, listeners, in informing how you think about Justice Barrett. Well, lots of other stuff to catch up on because I don't know, it's been a long time since we recorded. But we're not going to do that today. Instead, we are going to talk about the book and then maybe we can catch you up on other stuff in season six, right? Season six is coming.
Will: Hopefully.
Dan: Wow. Okay. So, Justin, we normally, in these book episodes, we turn it over to the author for a little bit to lay out the principal claims of the book. What's the book about? And then we try to just have a discussion. I did want to pick a small bone with you, which is that I think this is maybe like the eighth podcast you've done about this book. [Justin laughs] You finally came to us. We thought you were a big friend of the show, but I think you've made the rounds. We're finally getting here and we're glad to have you. But I feel like the godfather here. Like, if only you'd come to me in the beginning. [Justin laughs] So, we're grateful to have you whenever you want to be here.
Justin: I am so delighted to be here with my two friends to discuss my book. I'm really grateful to you all for having me on. So, I'll talk a little bit about the book and I'll start with the motivation for the book. I had another book project that I was very excited about and the Supreme Court handed down its decision two years ago, June of 2023. And I was deeply alarmed by the decision, and I thought that it would prompt a steep decline in Black enrollment in many of our fine universities. And I'm sorry to say that prediction has been borne out. MIT went from 15% Black in its first-year class to 5%. Amherst went from 11% Black to 3% Black. And many of the Ivy League colleges suffered declines of 40% or more in Black enrollment.
And so, I really do believe that we are in the midst of seeing, or perhaps more accurately not seeing, a lost generation of Black students on elite college campuses. And that is going to have, in my view, cascading consequences for American society in many sectors. And so, I have a few things I'm trying to do in the book. One is to try to arrest and even counteract those declines by offering concrete solutions. I also want to salute affirmative action for the vital work that it did in improving American society. The Supreme Court of the United States, as you all know, has repeatedly upheld affirmative action before SFFA v. Harvard. But it did so with deep ambivalence. This is sort of not so great. But I look back at the fall classes of 1960 at Harvard, Yale, and Princeton. It was about 3,000 students that entered those three leading schools.
A grand total of 15 of those students were Black, about one half of 1%. Princeton, one of our great universities, had one Black student in the entering class. You flash forward a decade in 1970, and it's just shy of 300 Black students. So, just shy of 10% of the entering class. And that is an assault on the long standing racial hierarchy about where Black people belong in American society. And so, I contend that affirmative action belongs up there with the GI Bill as a transformational thing that improved American society for the better. So, the first chapter, I try to make the argument that even as assessed by conservative lights, the new admissions regime is actually worse than the old regime. We can talk more about that, I hope.
The second chapter is drawn from a law review article that I wrote called The Strange Career of Anti Subordination. Many of my colleagues here at Yale and liberals generally have banged their fist on the table and said, “Anti-subordination, a theory of the Equal Protection Clause, resolves all of these questions about affirmative action.” I think that's far too tidy an account. And then in the third chapter, I lay out what I think of as some of the viable constitutional mechanisms that universities could use who remain interested in racial diversity. I should just say before I throw it back to you all, when I began this book, I was really deeply worried about the future of higher education.
This is one of these instances where the book feels more urgent with each passing day than it did when I began writing it. And that is due, in no small part, to the Trump administration's assault on higher education, including the way that it is brandishing a misconception of what the Supreme Court's decision actually meant. And so, I think that there are lots of things that universities can do. The last, last thing I will say is some people who have written in this area have said that universities should simply defy the Supreme Court of the United States. That is deeply wrongheaded in my estimation. I want no part of Team Defiance whatsoever. Seems to me that the rule of law is fragile and its fragility has never been clearer than on this day we're speaking right now, at least in my lifetime. And so, I really do take the Supreme Court's opinion seriously. I think it was a cataclysmic decision, but it also does not sweep nearly as far as the Trump administration is asserting that it swept.
Dan: So, I think last time I saw you I reminded you of this but I was on Yale's campus the morning that the decision came down, because I was there for the Harvard/Stanford/Yale Junior Faculty Forum, and we were going to get coffee and then the decision came down. And I could tell that this was something that was really going to consume a lot of your attention, not just that day, but in the future. I'll say at the outset, I loved the way in which you take the conservative arguments on their own terms and flip them around. I just thought that was really brilliant and it's the kind of move that people on the left should be doing a bit more of in a world where people with our views are not in power.
And you have to make arguments that are not just directed at our ingroup. And I think that's especially important in the academy, which I think gets a lot of flak for this, but I do think it's fair to say lean's very, very left and there can be a little bit of an echo chamber. So, I really, really liked that. You know, one objection though is, couldn't someone just say, “Well, the reason that the things you're noting are problems is just because SFFA didn't go far enough. So, the solution, if you're worried about this victimization thing, is just to say you can't talk about race and you can't self-identify in any way in your admissions essay and that solves the problem. And then, maybe we get rid of personal statements. Maybe we just have admissions regime based on test scores and grades, just a numerical regime.
Justin: It's a very interesting idea. Maybe I should, for listeners, talk a little bit about some of the conservative objections to affirmative action and then get around to answering your very good question. So, as I said, I think that conservatives have long critiqued affirmative action along two major lines. One would be exactly as you suggested, Dan, that it sort of breeds a sense of victimology and that this is a dangerous thing for applicants or people generally who want to make contributions to society to view themselves as besieged and rather than thinking about what they can actually contribute.
So, I say in that chapter that if you take this argument seriously, that the new regime is going to be worse than the old regime, because under the old regime, a Black applicant could check the Black box and then write an essay about why you wanted to study anything under the university sun, including Proust or Plato or anything else. But under the new regime, Black applicants are strongly incentivized to write essays consistent with what Chief Justice Roberts said toward the very end of his opinion that sound in racial discrimination. Sort of "nobody knows the troubles I've seen." It's an interesting question as to why Chief Justice Roberts included that statement. And you might also include footnote four where he writes in rather grand terms, eliminating racial discrimination means eliminating all of it. Of course, there's a carve out for the military academies.
And then he says, “If you are writing about your own individual experiences, then it would be permissible to credit that.” I suspect that one of the reasons that he did that is that it's a little difficult to know how an admissions regime would work in the absence of some personal statement or even a list of activities that includes one's membership in the Black Student Association, say, The idea that we're going to be going through these applications and redacting them seems like highly unusual. And I think that most people would say that universities have a tremendous amount of discretion as to who they're going to admit. These fancy schools have people with perfect GPAs and beyond and perfect scores on the standardized tests coming out of their ears.
And so, I don't think that most people believe that it would be a preferable admissions posture if you were just going through only on the numerics of the system. So, I suspect that some of the reason that Chief Justice Roberts included this essay carve out, in effect, is saying we can't say, “Well, you can't write about that at all." That would seem like a very odd thing. And so, it's just yielding to the reality of the situation that you can't block this out altogether.
Dan: So, to the extent that this regime is creating those incentives and a Black applicant feels like, “Oh, I wanted to write about Proust, but now I have to write about my struggles,” isn't that premised a little bit on the belief that admissions offices are cheating a little bit? That of course they're going to find the race essay much more compelling than the Proust essay. That's why I have to do this, because I know they're cheating a little bit behind the scenes. Right? Isn't that sort of baked in?
Justin: No, I wouldn't regard it as cheating. No, I don't think that's right. Chief Justice Roberts said that it is permissible for universities to consider obstacles overcome, challenges bested, and that some of those obstacles that are overcome might be racial in nature. It's important to say, I suppose, that the entire passage there says that it's permissible for admissions offices to consider encounters with racial discrimination, inspiration or otherwise. And so that seems to me to be not encouraging or predicated upon cheating or anything like that. And to the contrary, I do, in the books, chastise at least one law school that had, in the aftermath of the decision, say, “Hey, we want you to upload a 10 second video of [Dan laughs] yourself talking about anything under the sun.” No. And they quickly retreated from that approach.
And that seems to me to be violative of SFFA v. Harvard. What can you get from 10 seconds about disparate questions? At least they could have said, answer a question about the [chuckles] same thing. That seems like to me, that would have been better. And I go on to say that if universities are offering preferences based on names, that they believe that this sounds like a Black name or a Latino name, and then they're automatically doing that, that is defiance of SFFA. I also say that if they are scouring social media with an eye toward attempting to ascertain racial identity, that would be a violation. But no, and I don't think that universities are cheating when they potentially credit an essay in that fashion. So, no, I think you and I are on different sides of the position there.
Dan: If we were to see that they put 90% of the weight on essays that talk about race, they get way, way, way, way, way more points than any other essay that at least starts moving in direction of workaround, right?
Justin: That seems fair to say. If the essay is accounting for, as you said, 90% of the justification for people being admitted, that might fall into the passage after the one about inspiration, discrimination or otherwise, where Chief Justice Roberts says, “You cannot just simply sort of recreate through other mechanisms the regime that we hold unlawful today, we are concentrating on the thing rather than the name.” Although there's going to be serious debates about what is violative of this decision going forward. You know, the temptation is to think that, “Well, that's the end of that.” Case closed. But oftentimes Supreme Court opinions are the end of one chapter and the beginning of another chapter.
And you have seen some conservatives saying, hey, what these either, fancy magnet schools are doing is violative of SFFA v. Harvard, or these universities are acting in ways that are inconsistent with SFFA v. Harvard because we have not seen declines in Black enrollment or we have not seen increases in Asian American enrollment. But I think that some of those arguments are very tricky and are unwittingly, I believe, backing up into a reconsideration of Washington v. Davis and I'm working with a student who's writing a very interesting paper right now titled the new racial balancing. Racial balancing has been a boogeyman for conservatives for a long period of time. That is what's forbidden.
When the claim is, well, say, for example, Thomas Jefferson magnet school changed its admissions regime and suffered a decline in Asian American enrollment and Black and Brown enrollment increased, well, then that's a violation of the Constitution of the United States. That seems to lock in the existing regime and set up a new type of racial balancing. So, we are in, alas, from my perspective, exciting times for people thinking about the Equal Protection Clause.
Will: I have one follow up on the essay question. Just as we're thinking about how it works. I think the essay carve out is a huge question. What do you think are the rules for how schools can grade them? So, if they get African American students who describe the troubles they've seen along the lines that they seem to be encouraged to do, do they have to grade those exams the same way as exams from white students who say they've also seen troubles, or are they allowed to say, “No, we believe the African American students more given we know about the world, about the troubles they've seen.”?
Justin: It's a very interesting question about how admissions officers are going to grade this. I suspect that some of the variation in enrollment may be attributable to this being an incredibly diffuse, polycentric response. Universities are concerned about collusion. General counsels are going to be offering interpretations of the questions of the sort that you've asked. Admissions officers are then going to be interpreting the general counsel's advice. And so, there is a game of telephone here. My answer would be that, yes, admissions officers would need to be able to credit a white applicant who would say that their difficulties that they've encountered have a racial dimension to them.
And I don't think that's an especially exotic claim to make for somebody to say that I grew up in this part of the country with a long history of unemployment and a particular type of drug abuse, and one could imagine, say, oh, I don't know, the Vice President of the United States [Will laughs] writing an essay that sounded along these dimensions. Now it is, though, interesting, you're asking me from a legal perspective, and that's my legal response. I am interested, though, in the descriptive response of whether people are writing in that fashion. And you could imagine some white applicants writing essays that talk about racial aggrievement and taking one into very tricky and negative territory very quickly. That sound in, I don't know, white nationalism or something, right?
Will: Right. Yes.
Justin: And also, of course, one could also find essays sounding in Black nationalism. So, my suspicion is that white applicants are going to be less likely to write these sorts of essays. But that's just a suspicion. This book is not driven by my being embedded in an admissions office or these sorts of things. Sometimes, I talk to people in university positions and everything, but this isn't that sort of book. So, I don't know. I would be interested in hearing from listeners as to whether people are actually writing these essays who are white.
Dan: I'll also say that this objection could apply to the mismatch argument as well to the extent the argument is in the post-SFFA regime, there's going to be more mismatch because universities are going to admit more valedictorians of very poor schools in rural Black areas. I think the conservatives would just say, “Well, that's because they're cheating again. They should just be admitting more white students. They should admit the person who's 25th in the class at Andover, 50th in the class who's white, rather than going and trying to find people at these underperforming schools."
Justin: That's a very interesting point, and I just want to elaborate it for a second and then say why I completely, respectfully disagree. So, yeah, the claim that I make is that for a long time, conservatives have really been focused on mismatch arguments. This is a term that one associates with Richard Sander wrote the Stanford Law Review article many years ago that was vigorously debated and contested by Ian Ayres and Dan Ho and many others. But this idea that Black students are accepted into, say, the best school in the country when their talents actually suggest that they would belong, as such, at the 15th best school in the country, and there they would really be able to thrive and put their best feet forward. But this just over places students, in effect.
So, I am focused less on the academic mismatch piece of this and instead the social mismatch piece of this, which is something that Justice Thomas has talked about, including behind closed doors at the Supreme Court. I write about a young man called Cedric Jennings who grew up in Washington DC and went to Ballou High School and he was trying to achieve in the face of real adversity, including attending a really underperforming school. Justice Thomas reads about this young man and issues a standing invitation to him to visit his chambers at any old time. That's really to Justice Thomas's immense credit, in my view, trying to make a positive difference in someone's life who he may well identify with in certain ways.
So, Cedric Jennings eventually goes Ron Suskind, The Wall Street Journal reporter who would eventually write a book about this, tags along and the question of college comes up. And Justice Thomas says, “Oh, where are you off to in the fall?” And Cedric Jennings says, “Brown.” Justice Thomas frowns and shakes his head and says, “I don't know if I would do that if I were you, there are an awfully lot of smart white kids up there. If you're not sure of who you are and where you're from, you're going to get eaten alive, in effect.” And he goes on to write about this in My Grandfather's Son, his memoir, where he says, “At Holy Cross I saw Black students who weren't accustomed to being around white people, and this is just a lot to take on.”
So, again, I'm trying to channel my inner conservative and say these issues are going to be intensified because universities are going to remain interested in enrolling Black students. But rather than admitting the A minus, even B plus student at some of the fanciest high schools in our country, they are going to say, “We can get the valedictorian from Ballou and its ilk.” And that is going to be easier to justify from a litigating perspective. You say that conservatives are going to say that is cheating. And I am in agreement with you. Brian Fitzpatrick of Vanderbilt has been making this argument for a long time now, that this is discriminatory purpose when, say, the University of Texas adopts the top 10 percentage program. That argument has not found traction at the Supreme Court of the United States, certainly in Fisher 1 and Fisher 2. They were considering the second step of the University of Texas admissions process that involved individual racial classifications.
So, no, I don't think that we are at a point where we can say that most conservatives on the Supreme Court believe that the Texas 10% plan violates the constitution of the United States. And so, this is a way of saying that even Chief Justice Roberts in his opinion and SFFA says that “The goal of racial diversity is a commendable one,” he says, “A worthy one.” I take him to be more interested. And as I say in the book, he's focusing on race qua race is what is prohibited. And we should say that has a very long tradition among leading conservative intellectual lights, including the great Justice Scalia, the most influential Justice of the last five decades.
Indeed, whoever is in second place is in a distant second place. I say that not because I admire all of his jurisprudence, but as a descriptive matter. He has, as Justice Kagan would say, “Changed the way that we talk about the law and think about the law.” He wrote a fascinating, virtually forgotten essay in the aftermath of Bakke in the Washington University Law Quarterly at the time, where he says, “I don't have any problem with universities going after the poor and disadvantaged.” And he goes on to say, “I completely understand that those programs may disproportionately, even overwhelmingly, help Black applicants.” He goes on to say, “I wouldn't care if all of the beneficiaries of those sorts of programs were Black. What is forbidden is treating them differently on the basis of their race,” he says in italics.
And that sounds to me a lot like race qua race and there are other people who have made arguments in this register as well.
Will: I'm curious, do you think that's where it's going to end up? Because you could imagine the logical endpoint of this jurisprudence is going to be something stronger. You might call it hard colorblindness. That would just be, you just shouldn't care what race people are. And so, if somebody brings up that MIT's Black student percentage has gone from 15% to 5%, you can imagine the strong colorblindness person saying, “You should just not care. A person's a person, no matter what color their skin. So, unless you tell me something about these people that's relevant, not their skin, I just don't care.” Now, the court has definitely not done that. But do you think it's possible we're going to end up there in our lifetimes?
Justin: Oh, well, I hope that our lifetimes are a really long time.
Will: [laughs] Me too.
Justin: It's hard to predict these things, and things can move in dramatic ways. If you were to have told me when I was a kid that we would have a holiday in honor of Juneteenth, I would have told you, “Well, what the heck is Juneteenth first?”
[laughter]
It’s the term that was unfamiliar to me until Ralph Ellison. There was a posthumously published novel titled Juneteenth. I was very interested in Ralph Ellison. I remain very interested in Ralph Ellison. But if you would have told me that we would have a holiday honoring the end of slavery in the United States, I would have thought you were crazy. So, things can move in all sorts of different directions. It is true that there is some appetite at the Court, including most prominently from Justice Alito and Justice Thomas, who are eager to take on these magnet school challenges and reviving a discriminatory purpose argument. But I don't think that's anywhere near on the horizon right now because of the conservatives very, in my mind, wise reluctance to revisit Washington v. Davis, which, of course, many liberals have detested since the 1970s. This is a bête noire of liberal constitutional thought and the idea that it was very difficult for Black applicants to make out a successful claim of discrimination because of discriminatory impact for half a century. And now we're going to revisit this when there are white people and Asian Americans who are on the losing end. I don't believe that the Roberts Court is going to do that.
As to your larger question, there are some people consistent with what you say, including Edward Blum, who says, “In effect, thank goodness MIT is 5% Black.” Not because he would say, “I'm not so worried about the actual percentages,” he would say, “But because that 5% of MIT is Black. They can have their heads held high. They made it there through the front door, rather than the back door, and they're there just like everyone else." But of course, as you two know, this isn't the first time that affirmative action has ended. We have these things called states. And states got rid of affirmative action, including the famously liberal state of California back in the 1990s. And even decades after the end of race conscious admissions policies at the University of California at Berkeley.
We did not enter the post racial nirvana that Mr. Blum suggests, pardon me, that we are entering. I find statements from Black students saying, “There are so few of us that our classmates don't even believe that we are students. And so, when we're walking around Berkeley's beautiful campus and there are students handing out leaflets to every student who passes by, they don't even offer a leaflet to us." They say, "You must have gotten in because of affirmative action, even though affirmative action was wiped off of the books in the 1990s.’” And they say that we're not even invited to their study groups. So, I don't think we're going to see this post racial nirvana.
And one of the things I want to do in the book, by the way, is to get us to invert the default assumptions in this area. Chief Justice Thomas-- It’s not Chief Justice Thomas, I promoted him. [Will laughs] Justice Thomas has for a long time been making this argument that, say, in the Grutter case, one of the difficulties with affirmative action is that some Black students would have been admitted without consideration of race to the University of Michigan. But because of the existence of the program in his language, “All are tarred as undeserving.” The assumption is that if you're Black, that you are a beneficiary and that you're not, you don't have the same credentials as other people, but that seems exactly wrong.
And we should just infer the default presumption and say, “Well, I'm going to assume that my classmates are here and belong here until proven otherwise. I'm not a zealot.” I would set up a rebuttable presumption. Some people aren't up to the task, as it were. And I would further say that we should extend that presumption of belonging to the legacy people or the sailors and the fencers and the sons and daughters of the donor class and on and on down the line. I don't think it's a great thing for law school classmates or college classmates to be walking around with a clipboard constantly saying, “Who's has earned their spot and who hasn't earned their spot?”
Will: You lost me at the athletes. [Justin laughs]
Dan: The point about the 10% plan, I think, is a really interesting one. Here's my question. If you have something like the 10% plan and you have the Texas legislature enacts it and they say on the record, “The reason we are enacting this plan is because focusing too much on elite suburban high schools is admitting too many Jews. That's why we need to go to the 10% plan.” Everybody agrees that would be impermissible. And so, to the extent you have a state that adopts a plan like this, and I'm also thinking about the magnet schools, which I think in many cases are consciously saying, “Gosh, there's a problem with the racial makeup. We need to change this to produce a different racial impact." Why isn't that under the conservative colorblindness principle? Why isn't that a problem?
Justin: It's a great question, Dan. Great question. And it goes to the heart of a deep tension in our Equal Protection Clause jurisprudence. It's a guiding light for conservatives who say the reason we need to avoid race is that we can't tell when it's being used for benign purposes and when it's being used for malevolent purposes, and therefore, we should just get out of using race altogether. But that's not the case. I quite agree with you that if the change in the University of Texas were driven by a desire to say we want fewer Jewish students on campus or even to keep it in the racial context, this will lower the number of Black students and Brown students on campus and a good thing too.
You, all three of us agree that every federal judge in the country would say that is a plan that violates the Equal Protection Clause. But that's not what we see across our equal protection jurisprudence. And so here we need to juxtapose two cases that I've thought about a lot. I've thought about schools. You have to think about the Keyes v. Denver decision from the early 1970s and then the Parent’s Involved decision from 2007 decided when I was a law clerk for Justice Breyer. Okay, so in Keyes, they're looking at Denver. The question is whether its approach to schools violates the equal protection clause. They do not as some liberals at the time wanted them to say, “Well, there's a tremendous amount of racial isolation or what we would today call to disproportionate impact. And that should on its own suffice to make out a claim under the Equal Protection Clause.” Instead, they found discriminatory purpose on the part of the Denver school. Why? Because Denver had drawn the district boundaries in a funny way, a weird way, so as to promote racial segregation in Denver's public schools. And then they also did this odd thing where they built an unusually small school in a part Denver where the barrio meets the ghetto. And the Supreme Court says, “This violates the equal protection because this reveals discriminatory purpose.”
You flash forward a few decades to 2007, and Justice Kennedy writes what's treated as the controlling opinion for the court. And he pulls apart two concepts that are often collapsed, anti-classification on the one hand and colorblindness on the other. And so, Justice Kennedy, your old boss, Dan, says, “I'm a hardcore anti-classificationist, but I also believe that colorblindness is not required. And so therefore,” he says, “School districts can draw the district boundaries in a funny way so as to promote racial integration. And indeed, when they are doing site selection for where to build a school, they can be aware of the racial demographics of a city.” And so, this is a way of saying that though conservatives say we can't tell whether race is being used for good purposes or bad purposes, that's not how our jurisprudence actually works.
And then the last thing I will say is that I think that there's a way that you can understand Chief Justice Roberts’ opinion as importing Justice Kennedy's controlling opinion in Parents Involved into the context of higher education, where racial classifications are impermissible of individual students. But the goal of pursuing racial diversity is, in his terminology, worthy and commendable. So, I'm very interested, as you do know, in the various sites of constitutional interpretation, the various contours that the Constitution assumes in our public schools or prisons and in Parents Involved Chief Justice Roberts said, “Well, Grutter," and the compelling interest there, that was about higher education. We're thinking about K through 12. I think that we've seen perhaps a harmonization of parents involved lower education and higher education in SFFA v. Harvard.
Dan: So, go in a different direction. The book, it's committable in how pragmatic it is. I'm going to put you on the Supreme Court and I'm going to take away all the precedent. So, this question of university affirmative action, and let's just say it's at a—put aside saturations, let's just say it's at a public university. How do you write that opinion? What kind of reasoning do you engage in?
Justin: Sorry, Dan, you're taking away a lot of precedent. You're taking all the precedent. I'm sorry, spell that out just a little bit more.
Dan: Yeah. How about I take-- Well, I take away Bakke, I take away Grutter, I take away Parents Involved. You can rely on other equal protection case law, but this context, you can rely on Brown.
Will: [chuckles] We're back to DeFunis v. Odegaard.
Dan: Yeah. And ideally what I'm trying to get you to do is give me from first principles opinion and not the leaning on precedent opinion.
Justin: Very interesting. So, a lot of people when confronting this question would say that remediation for past and ongoing racial discrimination is the way to go. I'm sympathetic to this claim that this has quite a lot of force in American society. There are students of mine who tell me that Justice Powell wrote the decision in Bakke predicated on racial diversity while in effect twirling his mustache because he realized that placing affirmative action on diversity would be a very unstable foundation. You know, I believe that it should have been a belt and suspenders approach. Justice Powell said "racial remediation and passing justice, we cannot be thrust back into the past, and that's not the way to go." But I would have thought that there is something, at least in some educational context to diversity.
And of course, I wrote law review article along with Jonathan Masur and Kyle Rozema, and now Dean Adam Chilton called Assessing Affirmative Action's Diversity Rationale where we did some-- They, I should say did some empirical work and I did some typing to look at the effect of the adoption of affirmative action policies on law reviews and did citation counts and found that there were an increase in citations in the aftermath of the implementation of diversity policies. And the classic example from law schools is that if you're teaching a class on criminal law and you don't have Black students there to be able to talk about the phenomenon of racial profiling, that that would be a poor classroom experience.
And I believe that. I would also say, of course and this is, I think, a line that the Chief is used, well, tell me about the Black perspective on physics or lots of other things under the sun. So, it's not something that is perfectly translatable. The last thing I would say, this is, I think, relatively novel. I gesture toward this in the book, is something to be said for a democratic justification for affirmative action, given-- a small d, of course, that Black people ,for a long time, had been completely shut out of the corridors of power in American society. And I do believe that those statistics I offered from 1960 to 1970 really did amount to a claim that Black people belong in rarefied segments of American life. And that jump started our racial egalitarian project.
I would actually be interested in some conservatives saying, “You know what, I'm actually glad that affirmative action existed for a period of time. It did our country an enormous good, but the time for that has run out.” Maybe there's a way in which you can understand certain aspects of Chief Justice Roberts opinion and Justice Kavanaugh's opinion as maybe speaking in this register, given that they claim—they claim that they are not overturning Grutter, instead they are honoring Justice O' Connor's 25-year sunset because I have my doubts about that. We can talk about that if you're interested, but we don't have to.
Will: Yeah, I was wondering what Justice O' Connor. But actually, the thing you said about, thinking about also the law review article you wrote made me wonder about this question about the cites, which is if a law school engages in the right amount of affirmative action and has a good class, should it still be the case that components of the law school also engage in affirmative action or I'm thinking of Stephen Carter's sort of old argument that oversimplify, which was it's one thing to have affirmative action at the college level to help people who've never really gotten a break, but law schools that are drawing from elite colleges that engage in affirmative action shouldn't double up. Do you have a view about that question?
Justin: Yes, I do. I think that the later that the intervention goes, the less justification exists. The notion that we would have, this percentage of Black students needs to graduate, say summa. Ridiculous, absurd, and so on down the line. I would also say I focus on higher education in the book. But there's a way in which you can understand Justice O' Connor's jurisprudence in this area as having some force to it and even is consistent with what I've said a moment ago that is to say, she writes the Croson decision, she writes the Adirondack decision, both arising in the period of contracting. And that on my terminology is a later in time intervention. It also is really unhelpfully transparent. Everybody knows who made the lowest bid and then you're not going to the lowest bidder.
And so, there's one temptation to say, “Well, Justice O' Connor wrote those opinions long before the University of Michigan case and so she changed her mind and she flipped.” But another way of understanding that is that she was sensitive to this site-specific understanding of constitutional interpretation, and also the temporal component that I've suggested. Should we talk about the 25-year sunset provision, or no? We don't have to. We don't have to.
Will: I'm going to ask one last question about this part though, which is this, but you think about the court as a power thing. It might like if you think about Supreme Court Justices hiring law clerks, on the one hand, it's a very late intervention on the other hand, there might be Justices who feel like it would be good to have some students of color in chambers and I will go to take affirmative steps to do so. Maybe even Justices who joined SFFA feel that way.
Justin: Wonderful point, Professor Baude. Yes, actually that is a special context. It is after law school. Nevertheless, Justice Ruth Bader Ginsburg hired a grand total of one Black law clerk in all of her time being a jurist. She was asked about this during her Supreme Court confirmation hearings because my recollection is that she had never hired a Black employee in her dozen or so years on the D.C. circuit. No Black law clerks, not even a Black administrative assistant. And Justice Ginsburg had this disarming claim. "Well, oh, if I get this promotion, I'll be a more attractive employer to Black applicants." When of course, she was a feeder judge on the D.C. circuit, people would have given their left arm to do this. The Black law clerk in question was the mighty Paul Watford revere judge on the Ninth Circuit.
And so, this is the creation of a particular type of elite. I'll go one step further. You all know that many jurists think of their law clerks as a type of family. And that's not like an exaggeration. This is a collection of people. And I would hope that Supreme Court Justices would think about whether their created families excluded Black people or Brown people or Jewish law students, which is something that I believe has happened. It's my recollection that there's not been a Black person who's clerked for a Chief Justice of the United States since the Warren Court. I could be wrong about that. And I invite listeners to tell me that I've got it wrong. I do pay attention to this material. So, I completely and happily stand by your sort of modification. And so, maybe it's too crude to say, “Well, if it's this late in time.”
Let me tell you one other story. Justice Thomas, before he's on the Supreme Court, of course, leads the Equal Employment Opportunity Commission at his investiture to this office. Strom Thurmond is there clapping him on his back. William Bradford Reynolds, the head of the Civil Rights Division in the Reagan Justice Department, Brad Reynolds speaks and he says, “So glad to be here today because Clarence Thomas is the epitome of affirmative action done right.” Thomas flinches, looks at the ground and horror. And this is, I think it's safe to say, every Black professional's worst nightmare on your crowning achievement. You are told you've done pretty well for a Black person.
And I try to be sensitive to this idea that there can be a subordinating component of affirmative action. And that's why I write what I write in chapter two. And it would be surprising if Justice Thomas’s searing experiences in the Reagan administration and even here at my beloved employer Yale Law School, when he was a student here, he's written about this. It says that there was a professor who said, contra what Justice Thomas would say in his Grutter opinion, if we didn't have race conscious admissions, there would not be a single Black law student here. And Justice Thomas has said, when he was walking around here, it was like there was a monkey on top of those gothic arches and they would jump on your back every time that you walked into a classroom. So, I disagree with Justice Thomas about many things, but I think that one would be foolish to completely disregard his experiences in this realm.
Dan: We're running a little short on time on my end. Will, I would be okay hopping off if you have more stuff you want to do.
Will: Well, I was just going to ask the last question about whether 25 years so is affirmative action going to become unconstitutional in three years?
Justin: Okay, so I wrote a full-page article in the New York Times trying to take the 25-year idea seriously from Justice O' Connor that she wrote in 2003 where she says, “It's been 25 years since Bakke was decided. In another 25 years, we expect that affirmative action will no longer be necessary.” Justice Thomas referred to this as a holding of the decision. And he concurred with that holding. Justice Kennedy referred to this as a pronouncement of the decision. And it is unusual. And so, the temptation is to say, “Well, that's just dicta. These are musings.” But another way of viewing it is precisely because it is so unusual that we should pay special attention to it.
You know, Chief Justice Roberts speaks in this register, Justice Kavanaugh emphatically speaks in this register to say we are honoring Grutter because the next college class that will be admitted to Harvard and the University of North Carolina and everywhere else is going to be part of the class of 2028. Therefore, 2003 plus 25 gives you 2028. I think this is a very strained, difficult reading to credit for the following reason. Surely, the decision in the Harvard case applies not just to college admissions but applies to university admissions as a whole. And of course, many departments, including law schools, have programs that don't run for four years, but instead run for three years. And by this logic, law schools would be able to say, “We’re going to use race conscious admissions policies for one more year. The MBA, which is two years, would be able to-- business schools would say, oh, we get it for two more years.”
I believe that there would be many Supreme Court Justices saying, “Wait a minute. You are acting in defiance of our decision.” And so that means that the timing of 2028 needs to be geared to timing of decision making rather than the year of graduation. This is fuzzy math beyond all regards. So, obviously I respect the Supreme Court Justices who wrote in that register, but I respectfully disagree with their accounting.
Dan: I asked ChatGPT. ChatGPT reports, “The last known African American law clerk to serve the Chief Justice of the US Supreme Court was Tyrone Brown, who clerked for Chief Justice Earl Warren in 1967-1968. So, it can be wrong but at least based on the information that's out there on the internet, it does seem like your belief is correct.
Will: This has been an amazing conversation. Should we call it a show?
Dan: I think so. Tons more I can ask, but I have to get to the airport, and Will has to go do originalism or whatever he does when he's not recording with me.
Will: And listeners have to read the book.
Dan: Yeah. Justin, thanks so much for joining us. This has been a really, really great conversation.
Justin: Thanks for having me. I really enjoyed it. Really privileged to speak with you all.
Will: Thanks for listening. Thanks to Justin for taking the time to come on the show and talk about his great book. I hope people all buy it and read it. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.
Dan: Please rate and review the podcast wherever you get your podcast. Visit our website dividedargument.com for transcripts, blog.dividedargument.com for commentary from the larger Divided Argument universe, store.dividedargument.com for merchandise. Send us an email pod@dividedargument.com and leave us a voicemail 314-649-3790.
Will: And if there's a long time before our next episode, it will be because Dan got really mad at me because we made him miss his flight.
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