Conservatives are right to celebrate judicial victories, but they would be wise to remember that every courtroom fight is a rearguard action. A judicial victory arrives only after the political branches or national institutions have retreated from conservative positions. Conservatives’ recent victories came only after a president forced nuns to pay for abortions, a state persecuted a religious business owner, and elite universities picked winners and losers by skin color.
It’s good to win the courts but better to win the offices, institutions, and culture. The judiciary can stave off defeat, but the prior three can push on to victory. Evidence for this claim comes from the Trump Administration’s efforts to turn the judicial victory against universities’ race discrimination into a larger conservative counterattack.
We see the administration’s strategy in executive orders, proposed rules, and official letters, in which the administration signals its intent to export the logic of Students for Fair Admissions v. Harvard to contexts beyond college admissions. In that case, the Court said that colleges could no longer give preference to applicants based on race, and ended an exemption from the nation’s civil rights laws the Court had previously crafted for colleges.
At a casual glance, it might not seem obvious that Students for Fair Admissions can be exported to other contexts. After all, that case was about college admissions, and the only thing that the Court seemed to do was close a loophole that it had previously given to universities so that they could ignore the Civil Rights Act and the Equal Protection Clause. Every other government and private entity remained bound by those provisions. But a closer reading of the decision reveals a logic that can’t be limited to universities, and it’s this logic that the administration is aggressively pushing into other contexts.
Three of the decision’s premises are key to the administration’s offensive. First, race preferences, if permissible at all, must be temporary. Second, race preferences cannot be based on stereotypes or used as a negative. And third, the racial categories used to administer preferences cannot be arbitrary. The decision does not say that these premises apply only in the context of college admissions. On the contrary, the decision anchors each premise in higher notions of what is moral, prudent, and constitutional. And often, the justices supported each premise with citations to cases in very broad contexts.
The administration has taken the Supreme Court’s premises at face value, arguing that all three apply just as broadly as the Court seems to suggest.
We can see this strategy in execution in a recent lawsuit brought by the Wisconsin Institute for Law & Liberty against the Department of Transportation for using race and sex preferences to dole out $37 billion in federal contracts. Like many federal and state agencies, the Department of Transportation sets aside billions of dollars of federal grants for businesses owned by “disadvantaged” minorities. These set-asides sometimes take the form of preferences, and at other times explicit quotas, but they all share a presumption: anyone from one or more specific race and sex categories is presumptively “disadvantaged,” and anyone who is white, or Asian, or male is not.
The Biden administration defended this preference program, but a few months after taking power, the Trump Administration signed a consent decree admitting that the program “violates the equal protection component of the Due Process Clause of the Fifth Amendment of the US Constitution.” Students for Fair Admission was key to this conclusion. In fact, it is the only authority cited in the consent decree.
Again, curious, given the different context. But apply each of that decision’s key premises and things become clear.
First, none of these preference programs is temporary. They have existed for decades and, unless repealed or enjoined, will endure forever, just like Harvard’s discriminatory admissions policies. And there’s no reason to think that these programs are exempt from the temporal requirement that applied to Harvard. The Court based that requirement not on anything specific to universities, but on a principle that applies much more broadly: the “ultimate goal” of all race-based programs must be “eliminating race as a criterion.” That goal applies in all contexts, a fact the Court underscored with a citation to a case about minority contracting preferences.
Second, most racial contracting preferences rely on stereotypes or treat membership in certain racial groups as a negative. Minority contracting preferences, for example, rely on a presumption that anyone from certain racial and sex groups is “disadvantaged.” Those preferences necessarily treat being white, (in some cases) Asian, or male as a negative. Those people are denied access to certain contracts in the same way that white and Asian applicants were denied seats in Harvard’s freshman class. In fact, the problem with contracting preferences may be worse. Although Harvard’s “holistic” review theoretically gave white and Asian applicants a chance to explain how, despite their skin color, they brought diversity to Harvard, federal contracting presumptions are nearly irrebuttable.
Finally, the government’s racial categories are the same categories that Harvard used — categories that are frustratingly arbitrary, as law professor David E. Bernstein showed in his remarkable study of the origins and uses of America’s race labels (black, white, Hispanic, Asian, and the like). In casual conversation, these labels might serve tolerably well. But as the basis of well-reasoned public policy or, heaven forbid, medical research, they create total, sometimes dangerous, confusion.
What, for example, was the relationship between these categories and Harvard’s goal of “diversity”? By Harvard’s logic, no diversity exists among people labeled “white,” even though that category lumped together Israeli Jews, Saudi Muslims, and Irish Catholics. Similarly, there was no diversity among “Asians,” even though that category includes 60 percent of the world’s population, and nations as diverse as Pakistan, Japan, and Indonesia. And there was no diversity worth discussing among “Hispanic” people and “black” people, even though both groups include vast populations spanning myriad cultures, religions, ethnicities, backgrounds, and classes.
The Supreme Court outlawed these categories in school admissions because they are “imprecise,” “opaque,” “overbroad,” “arbitrary,” “underinclusive,” and lack a “meaningful connection between the means they employ and the goals they pursue.” That flaw recurs when the government uses those labels for minority contracting preferences. When the government presumes that every black, Hispanic, or female person is “disadvantaged” and every white, Asian, or male person is privileged, it acts just as irrationally as Harvard did.
The same goes for nearly any other use we might make of these labels — medical research, reparations, government — and that’s why Trump’s civil rights enforcers have gilded the tips of their spears with Students for Fair Admissions.
Theoretically, the Supreme Court, too, could wield Students for Fair Admissions against other discriminatory programs. Lower courts are doing so, but for reasons unknown, the high court refuses even to wield the case against other cases of discrimination in school admissions.
Even if the Court had the courage to take the offensive, it can only ever react to cases brought before it. Serious and sustained forward progress comes when other institutions mount counterattacks based in the Court’s rearguard victories — a lesson that conservatives should take to heart.
