Next term, the Court will likely declare that any consideration of a person’s race in university admissions is unlawful. If the Court does so, the ruling would have implications beyond college admissions, affecting the ability of many other kinds of institutions to pursue racial diversity. Currently our laws prohibit discrimination on the basis of race, regardless of which race is favored or disfavored. If the hiring chair of a company, or a government official, stated that he would consider only Black applicants or only women, that intent would be treated no differently under anti-discrimination law than if he said only white people or only men need apply. But there still remains space for taking race into account, as long as it isn’t the predominant criterion for selection—a space that may start to close next term. From government jobs to private firms, employers may eventually need to stop considering individual candidates’ race even for the purpose of increasing opportunities for historically disadvantaged groups…

Biden’s nominee will be in the peculiar position of undergoing a process that publicly and intentionally considers her race and gender, only to sit on a Court that is engaged in undermining, if not eliminating, the lawfulness of such race-conscious approaches. We are entering a time when those who take steps to insure racial diversity will have to find new methods and new language to describe those efforts. In light of the major changes likely to be handed down soon on the topic of race discrimination, not only will Biden make history as the first President to nominate a Black woman to the Supreme Court, he might well be the last President to publicly present an appointment as an intentional effort to improve the representation of an underrepresented group.