Race,Affirmative Action,Antidiscrimination,and the Roberts Court

Abstract

The Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard realizes conceptions about race and the post–Civil War amendments present in the Roberts court’s jurisprudence for several years including, notably, deep skepticism about the continuing need for civil rights remedies and a reading of colorblindness as the core purpose of the Fourteenth Amendment. Conservative litigation groups and the Trump administration are now using the SFFA decision to challenge race-conscious affirmative action programs and fundamental racial justice and civil rights laws and policies. While the Supreme Court has so far declined to adopt the farthest-reaching colorblindness arguments and has even expanded the reach of civil rights statutes in certain contexts, the next few years will likely be consequential for racial justice and antidiscrimination law. The court will almost certainly take up cases challenging the constitutionality of long-standing civil rights laws and recent racially reparative efforts.