I’m just about finished with my commentary about the Supreme Court term. Yet, I still have some difficulty reconciling the Chief Justice’s opinions in Allen v. Milligan and in Students for Fair Admissions v. Harvard. In the Voting Rights Act case, he deferred extensively to Congress’s findings concerning racial discrimination, and he stood by precedent from the Burger Court. In SFFA, he didn’t even consider what Congress had to say about racial discrimination, and effectively overruled precedent from the Burger Court. (Indeed, SFFA and Dobbs bear some similarities–the Chief pretended to follow precedent, when he fact he rewrote them.) I felt like I was reading from two different Justices.

How do we explain Milligan and SFFA? Perhaps one explanation might be some sort of balance. The Chief Justice cast one vote that supports progressives on race, and one vote that opposed progressives on race. According to this view, the Supreme Court is like a bank of legitimacy. Make a deposit in Milligan, make a withdrawal in SFFA, and end up with a balanced register.

[I’m not much of a Roberts defender, but I think the difference here is Congress. Congress passed the Voting Rights Act, but Congress had very little to do with affirmative action, which has been mainly an executive-branch project consisting of presidential EOs and agency regulations. Affirmative action arguably rests on Title VII of the Civil Rights Act, which Congress did pass, but nothing in Title VII authorizes race-based preferences in employment on a broad basis; it actually forbids any employment discrimination. The only mention of “affirmative action” in Title VII relates to a remediation plan for specific instances of an employer using discriminatory practices. Nothing in Title VII relates to college admissions either, although the later-passed Title IX does as relates to sex — and that doesn’t include affirmative action either.

So in the case of Milligan, Congress actually spoke to the issue and Roberts deferred to Congress. In SFFA, Congress never approved of affirmative action as practiced at Harvard or UNC, and the Supreme Court had more leeway to intervene. Gorsuch made this point in his concurrence, noting that Congress could have created an affirmative action program in 1964 as part of the CRA, but chose instead to emphasize that it would be unlawful for employers to “discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.” At any rate, Roberts has more rational ground to make this distinction than Josh credits, I think. — Ed]