Readers of this blog will know that I support some forms of affirmative action and oppose others. I would acknowledge, however, that a reasonable observer could say that, in 2022, the drawbacks of affirmative action exceed its benefits. It is Exhibit A in the reactionary argument that government is hostile to the values and interests of ”real Americans.” It is just too divisive.
But that is a judgment call for Congress, state and local governments, admissions officers, and the electorate to make, not the Supreme Court. There is nothing in the legislative history or the text of the Fourteenth Amendment or any of the Civil Rights Acts that justifies putting any particular time limit on affirmative action programs. To do so, then, is the worst kind of judicial activism. It is the height of arrogance.