In Fiery Dissents, Justices Sotomayor and Jackson Rebuke Affirmative Action Ruling

Supreme Court Associate Justices Sonia M. Sotomayor and Ketanji Brown Jackson ’92 fiercely dissented from the Supreme Court’s decision to dramatically limit the use of race in college admissions Thursday.

Across nearly 100 pages, the two justices — who are on the court’s liberal wing — slammed Chief Justice John Roberts’s opinion for the majority — as well as concurrences by three other conservative justices — who ruled that race-conscious admissions policies at Harvard and the University of North Carolina were unconstitutional.

“Today, this Court stands in the way and rolls back decades of precedent and momentous progress,” Sotomayor wrote in her 69-page dissent, which was joined by Associate Justice Elena Kagan and in part by Jackson.

Jackson had recused herself from any part in the Harvard case due to her former position on the Board of Overseers, the University’s second-highest governing body. Her 29-page dissent focused solely on the merits of the case for UNC.

Sotomayor read a summary of her decision from the bench on Thursday — a move reserved for particularly strong dissents.

Her dissent dedicated several pages to the history of the 14th Amendment and its Equal Protection Clause, which the majority opinion stated “cannot be reconciled” with the race-conscious admissions criteria at Harvard and UNC.

“The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality,” Sotomayor wrote. “The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind.”

Her dissent also appeared to rebuke the interpretation of Brown v. Board of Education — the landmark 1954 ruling that prohibited racial segregation in public schools — by the court’s conservative wing.

“The time for making distinctions based on race had passed,” Roberts wrote of the Brown decision, which was extensively examined throughout the justices’ opinions.

Sotomayor said that the Court’s opinion was “nothing but revisionist history and an affront to the legendary life of Justice Marshall” — the court’s first Black justice, who himself agreed in 1978 that race could be considered in college admissions.

“Brown,” Sotomayor wrote, “was a race-conscious decision that emphasized the importance of education in our society.”

Sotomayor also devoted several pages to the history of slavery, racism, and antisemitism at UNC and Harvard — extensively citing material from the University’s landmark legacy of slavery report.

“These may be uncomfortable truths to some, but they are truths nonetheless,” she wrote. “It is against this historical backdrop that Harvard and UNC have reckoned with their past and its lingering effects.”

“Acknowledging the reality that race has always mattered and continues to matter, these universities have established institutional goals of diversity and inclusion,” she wrote.

Acknowledging a footnote in the majority’s opinion permitting the use of race in admissions to military colleges, Sotomayor panned the decision as one that “harms not just respondents and students but also our institutions and democratic society more broadly.”

“The majority recognizes the compelling need for diversity in the military and the national security implications at stake, but it ends race-conscious college admissions at civilian universities implicating those interests anyway,” she wrote.

“The Court ignores the dangerous consequences of an America where its leadership does not reflect the diversity of the People,” Sotomayor later added.

In her opinion, Jackson similarly enumerated historical and contemporary challenges that have uniquely burdened Black Americans, arguing they were relevant considerations for “colleges like UNC to assess merit fully.”

“History speaks. In some form, it can be heard forever. The race-based gaps that first developed centuries ago are echoes from the past that still exist today,” Jackson added. “By all accounts, they are still stark.”

One solution to address these gaps, Jackson asserted, was the use of race-conscious admissions practices.

“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” Jackson wrote. “But deeming race irrelevant in law does not make it so in life.”

“If the colleges of this country are required to ignore a thing that matters, it will not just go away. It will take longer for racism to leave us. And, ultimately, ignoring race just makes it matter more,” she continued.

Jackson also issued a strong rebuttal of Associate Justice Clarence Thomas’s concurrence, which spent seven pages attacking Jackson’s arguments.

“Justice Thomas’s prolonged attack responds to a dissent that I did not write in order to assail an admissions program that is not the one UNC has crafted,” Jackson wrote. “Justice Thomas’s opinion also demonstrates an obsession with race consciousness that far outstrips my or UNC’s holistic understanding that race can be a factor that affects applicants’ unique life experiences.”

Thomas, Jackson wrote, “ignites too many more straw men to list, or fully extinguish, here.”

—Staff writer Rahem D. Hamid can be reached at rahem.hamid@thecrimson.com.

—Staff writer J. Sellers Hill can be reached at sellers.hill@thecrimson.com. Follow him on Twitter @SellersHill.