On the Court and Affirmative Action

The Supreme Court has agreed to hear two cases involving a very limited use of race as a factor in college admissions. Given the composition of the Court, it seems likely that it will overturn 45 years of precedent and find this kind of affirmative action unconstitutional. How will they do it, and what will it mean for other kinds of affirmative action programs?

The admissions cases are not as easy to overturn as Roe. The Court will either have to find that diversity is not a compelling interest, notwithstanding all of those years of precedent saying that it is, that the record in these cases does not show that affirmative action leads to diversity in any meaningful sense of the word, or that times have changed since the 1970s, so historically disadvantaged groups no longer require any kind of protection.

The most limited and least embarrassing rationale is #2. My guess is the Court will go with that one in order to avoid the perception of political hackdom. The other two (particularly #3) clearly open up other forms of affirmative action to a successful legal challenge. It will just be a matter of time.