Everyone agrees affirmative action has to go. So why is it still here?

If you believe, as I do, that the law is the law, and that the Supreme Court’s job is to uphold it irrespective of public opinion, then you should believe that the Court ought to strike down affirmative action. The Civil Rights Act of 1964 holds that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” That describes pretty much every single college in the United States. As such, the Court ought to make clear on statutory grounds that all institutions of higher education “receiving Federal financial assistance” cannot exclude from participation, deny benefits to, or subject to discrimination anyone “on the ground of race, color, or national origin.” The Supreme Court is a court, not a legislature, and its role within the system is to uphold the law as written. Until such time as it does not, federal law bans affirmative action. The Court must, too.

And if you don’t believe that the law is the law — if, instead, you believe that the Constitution is “evolving” and that our statutes are “breathing” and that the Supreme Court ought to hew so closely to public opinion that, in effect, it serves as a third chamber of the federal legislature, then . . . well, you should believe that the Court ought to strike down affirmative action.

[I’d say that this is self-evident, but it’s clearly not. Maybe 20 years ago, the idea of sticking to the rule of law and to adhere to public opinion would have been an argument of sorts for the courts to toss it. The Supreme Court had that opportunity nearly 20 years ago, but John Roberts decided the time wasn’t yet ripe for that decision. Now we have a ruling clique obsessed with outcome-based “equity” rather than equal treatment under the law, and any SCOTUS ruling in the opposite direction will come under severe criticism and likely significant unrest. After the Dobbs ruling, does this court have the stomach for another season of the same thing? And if the consensus is strong in favor of ending affirmative action, will that same consensus show up to punish the pols who push unrest as a reaction? — Ed]