“This is a court that has little regard for precedent and a very strong belief that it knows what the Constitution truly means—and that everything that happened before this court may be wrong and may be discarded,” said Dr. Gary Orfield, a professor of education, law, political science, and urban planning at the University of California, Los Angeles (UCLA) and co-director of UCLA’s Civil Rights Project. “That is the part that bears on how this court might approach affirmative action, voting rights, and other fundamental civil rights.”
Last week's leaked draft opinion over Roe from the conservative supermajority court would take away the federal right to abortion, which was established in the 1973 case. The draft is not the final decision, which will come next month. Yet many experts say the court is unlikely to significantly, if at all, alter its stance. Now affirmative action may be on the chopping block.
In January, the Supreme Court agreed to decide whether race-conscious admissions programs at Harvard University and the University of North Carolina (UNC) are lawful. The court has upheld similar programs before, most recently in 2016. Yet today’s conservative supermajority has shifted the playing field dramatically.
“I have to say that it doesn’t take much insight to guess what’s going to happen with affirmative action because we have Justice Roberts, Thomas, and Alito already having written dissenting opinions in previous affirmative action cases,” said Victor Goode, an associate professor at the City University of New York (CUNY) School of Law. “There is no reason that Justices Gorsuch, Kavanaugh, and Coney Barrett will take different points of view. They are ideologically cut from the same cloth as the other three.”
Devon Westhill, president and general counsel at the Center for Equal Opportunity (CEO), a conservative think tank, agreed and applauded the draft opinion on Roe. CEO states on its website that it promotes “colorblind, equal opportunity and nondiscrimination in America.”
“As soon as that leak was confirmed as authentic by the Chief Justice, the first thing that came to my mind was that they are going to abolish affirmative action,” said Westhill. “Because if they are going to do this with Roe, then these are some stiff-spined Justices. This court is prepared to say what the law is and not be incremental. These are Justices ready to right a number of precedential wrongs, and I think Roe is among them.”
