The Hill: No, plaintiff wins in the Harvard and UNC cases wouldn’t be undemocratic

Would a win for the plaintiffs challenging race-preferential admissions at Harvard and the University of North Carolina be an anti-democratic result — an example of how, as progressive legal commentator Mark Joseph Stern of Slate has put it, “Republicans have outsourced large chunks of their agenda to the federal judiciary and the Supreme Court”?

First, some general legal background: While the Constitution’s structural provisions put in place a democratic system of representative national government, the Bill of Rights ensures that some fundamental individual rights will be protected from overreach by that government. There are some things that are wrong for a majority to do, no matter how democratically it does them.

Court decisions upholding some of these rights (e.g., protection of the free exercise of religion and gun rights) are more popular with political conservatives, while others (such as protections for sexually explicit speech and safeguards of criminal defendants’ rights) tend to be more popular with political liberals. Certainly, reasonable people can disagree about how to interpret the scope of particular individual rights. But regardless of political orientation, none of us should want to live in an America where the individual has no protection from the will of the majority.

Enacted in the immediate aftermath of the Civil War, the three Reconstruction Amendments (13 through 15) added additional rights to the list of what government may not trammel. Notably, the Fourteenth Amendment’s Equal Protection Clause generally forbids race discrimination by government. Democratically enacted legislation further protects individuals from governmental racial discrimination: Title VI of the Civil Rights Act of 1964, for example, generally prohibits race discrimination by federal funding recipients.

In its 2003 Grutter v. Bollinger opinion, the Supreme Court nonetheless identified an exception to this general anti-discrimination principle. It held that universities can use race in admissions when such use of race is narrowly tailored to achieve a “compelling interest” in student body diversity.

Although this exception was supposed to be temporary and limited — Justice Sandra Day O’Connor famously said in her majority opinion that she fully expected preferences no longer would be necessary in 25 years — the empirical evidence does not indicate that preferences are getting any less prevalent. Nor does it seem that racial preferences have improved race relations on campus.

Students for Fair Admissions (SFFA) has challenged Harvard and the University of North Carolina’s admissions policies on the grounds that their use of race goes beyond the limited use authorized by the court and that Harvard is unlawfully discriminating against Asian-American applicants. In addition to contesting whether the two challenges are correctly applying the Grutter exception, the challengers also ask the Supreme Court, in the alternative, to eliminate the exception entirely.

When it hears these cases next fall, the Supreme Court will exercise its constitutionally granted judicial power to apply the Constitution’s Fourteenth Amendment and relevant anti-discrimination laws. This is hardly a matter of a particular political party outsourcing its agenda to the courts.

Thoughtful legal scholars occasionally have wrung their hands about the counter-majoritarian difficulty — the idea, first advanced by Alexander Bickel, a Yale Law professor, that judicial review of democratically enacted laws is illegitimate because it permits unelected judges to overrule the decisions of elected officials and thus subverts rule by the majority.

Whatever the merits of Bickel’s theory generally, there is no real counter-majoritarian difficulty here. Decades of polling data show that race preferences are consistently unpopular with the public. Referenda to amend state constitutions to ban race preferences in public employment,

public contracting, and public employment have been extremely successful at the polls. By my count, there have been seven examples of these successful state referenda. First, and most famously, California in 1996, but also Arizona, Michigan, Nebraska, Oklahoma, Washington and most recently Pennsylvania. Two other states — Idaho and New Hampshire — have passed similar statutes restricting governmental race preferences.

Efforts to overturn these prohibitions in two deep-blue coastal states — California and Washington — failed. Prop 16, the California initiative, lost the state by 14 points in 2020, a year in which Democrat Joe Biden won the White House by 29 points.

The right thing to do, alas, often isn’t the popular thing to do. But when it comes to upholding the bedrock civil rights principle that individuals should be treated as individuals, and not as representatives of their racial groups, the right answer and the popular answer are the same. The Supreme Court should rule for SFFA next year without concern about either overstepping its proper constitutional role or going against public opinion.

This op-ed was originally published by The Hill on February 14, 2022.