But there is another perspective that says that the legal power of the Supreme Court cannot withstand an even more formidable power:
The will of the American people.
That perspective insists that it ultimately won’t matter what conservatives on the Supreme Court decide on affirmative action.
A decision banning the use of race in college admissions could cause minority enrollment in higher education to plummet, but colleges will adapt. And so will the rest of America because concepts such as diversity and inclusion are too widely accepted now to be erased, some scholars and diversity consultants say.
“The ultimate check on the Supreme Court is popular will.”
Why critics dislike affirmative action
Affirmative action has been under attack since political leaders introduced it in the mid-1960s to improve educational and employment opportunities for racial minorities. It was instituted in part to compensate for centuries of slavery and segregation.
“A society that has done something special against the Negro for hundreds of years must now do something special for the Negro,” the Rev. Martin Luther King Jr. wrote in his final book, “Where Do We Go From Here: Chaos or Community.”
That movement says dividing people up by race is unconstitutional, that the Constitution is “colorblind” and that all Americans should be treated as individuals, not as members of a racial or ethnic group.
The broad opposition fell across racial and political lines: 62% of Blacks and 63% of those that either “lean” or identify as Democrats said race should not be a factor along with 78% of Whites holding the same views.
The makeup of the high court, however, has since become more conservative. Justices announced last month that they will reconsider race-based affirmative action in college admissions. The case in question challenges policies at Harvard and the University of North Carolina that use students’ race among many criteria to decide who should gain a coveted place in an entering class.
The issue also is part of a larger debate over diversity and inclusion in the US that impact all sectors, including corporations, the military, and even the National Football League.
The NFL said that Flores’ lawsuit was “without merit” and that “diversity is core to everything we do.” And the Dolphins “vehemently” denied the allegations, saying they are “proud” of the inclusion in their organization.
There is, however, precedent for presidential candidates making specific promises for potential appointees, such as Reagan’s promise to place a woman on the Supreme Court.
Why some form of affirmative action is here to stay
Despite the constant attacks against affirmative action, though, some say the concept is here to stay.
Some scholars say colleges can adapt to a Supreme Court ruling eliminating race in college admissions by shifting the focus to income.
One of the biggest proponents of this approach is Richard Kahlenberg, a senior fellow at the Century Foundation, a progressive independent think tank. He says that giving a leg up to economically disadvantaged students of all races would benefit people of color because they make up a disproportionate share of the poor.
It’s good politics, too, he says.
Keeping affirmative action alive is also good business, diversity consultants say.
A conservative majority on the high court can’t eliminate a growing recognition that the country needs an educated and diverse workforce to remain competitive, they say.
“People are realizing that there is an enormous amount of talent out there that’s being underutilized and that companies and leadership that reflect their customer base perform better in the stock market,” Ross says.
To reach a more diverse customer base, companies increasingly understand they must hire diverse workers who know how to reach those customers and make them feel welcome.
Corporate diversity makes dollars and sense, says Ross, author of “Everyday Bias: Identifying and Navigating Unconscious Judgements in Our Daily Lives.”
“When you go into a store and you see people like yourself, you feel more comfortable, and a greater sense of belonging, and you feel they may understand your needs,” Ross says. “That’s something that may be the difference between you buying a product at that store versus another one.”
And Supreme Court scholars cite another point: The court can try to remake society, but it can’t enforce its own rulings.
“The Supreme Court hands down decisions, but when they say everybody has to change their behavior, it’s almost impossible for them to get compliance.”
Why some say the court could derail social progress
But there are others who say a high court ruling against affirmative action in higher education will be devastating in both the short term and the long term.
In 2020, California voters rejected Proposition 16, which would have restored the use of race and gender in public college admissions.
In the long term, economic affirmative action is not enough to help applicants of color, others say.
Rosenberg cites the movement to abolish child labor in the late 19th and early 20th century. It had sympathetic victims. Smudge-faced and barefoot children were routinely employed as workers in dangerous factories, where their smaller size could help them do certain tasks and their age made them more unlikely to strike.
Activists successfully persuaded the public to turn against child labor through photo exposes, pamphlets, and mass mailings. They even forced the US Congress to act.
But the Supreme Court didn’t care, Rosenberg says.
“There was a majority support to abolish child labor,” he says. The Congress passed two separate bills using two different constitutional law hours to abolish child labor. The court invalidated both those laws, postponing the end of child labor for a generation.”
The Constitution dictates, for example, that every state gets two senators, no matter how small the state’s population. And as we saw with Donald Trump in 2016, it allows that a presidential candidate can lose the popular vote but still become president through the electoral college.
Any optimism about the will of the people being stronger than the high court doesn’t consider the gridlock of our politics, Rosenberg says. What chance is there for Congress to pass a law overruling a high court decision when Congress barely functions?
“If we had a political system in which majority views were pretty closely translated that optimism would be well-taken,” he says. “But we don’t have that system.”
Why 2023 will bring an answer to a key question
Those who think the popular will can supplant the high court forget their history: The Supreme Court’s traditional role has been to block political and social change, not validate it, scholars like Rosenberg say.
“I always say don’t underestimate the ability of the status quo to continue,” Rosenberg says.
The high court is expected to deliver their final say on affirmative action in higher education by June of 2023.
If the conservative bloc on the high court rules as expected, the aftershocks could ripple into other segments of a rapidly diversifying American society where buzzwords like diversity and inclusion are now taken for granted as facts of life.
We will then learn what is stronger:
The will of the Supreme court or the will of the people.