Affirmative Action: The Surprising Rebirth of Original Intent

Gader Wren


Justice Jackson, the newest member of the High Court, was confirmed on April 7, 2022, and sworn into office on June 30, 2022. In one of the first cases of her term, Justice Jackson advised that the original intent of the Thirteenth, Fourteenth, and Fifteenth Amendments was not to be race neutral, but race conscious.[2] Justice Jackson’s antiquated originalist argument surprised many in the legal community.[3] Most originalists have already abandoned original intent as a valuable constitutional interpretive method as it proved to be inconsistent.[4] For example, in 1985, then-Associate Justice Rehnquist argued that the original intent of the Establishment Clause prohibited the federal government from giving preference to one religion over another, while Justice Souter believed the original intent banned government funding of religion.[5] Putting aside whether original intent has merit, Justice Jackson’s comment helped set the stage for the Court’s race-based affirmative action cases.


On October 31, 2022, the United States Supreme Court heard oral argument on the case, Students for Fair Admissions, Inc. v. University of North Carolina. During the arguments, Justice Jackson raised three critical concerns: (1) can Petitioners demonstrate redressable harm, (2) can race be separated from a holistic review, and (3) can legacy consideration and race-neutral policies be used in harmony?


As constitutional law students, professors, and practitioners know, every petitioner must have standing before courts may hear a case in controversy.[6] Justice Jackson questioned whether Petitioners have standing. In one exchange with Petitioner, she stated, “first of all, the university is not requiring anybody to give their race at the beginning. When you give your race, you’re not getting any special points. It’s being treated just on par with other factors in the system. No one’s automatically getting in because race is being used.” Petitioner argued that in a system where some races receive a plus factor and other races do not, there is harm. Pointing to the record, Petitioner noted, “[t]he record in this case is that UNC gives a racial preference to African American, to Hispanic Americans, and to American Indians. It does not give racial preferences to white applicants and to Asian applicants.” In this way, Asian students are harmed. In short, it is as the Grutter dissenters advised: “racial classifications are per se harmful” as such classifications “hurt[]” all including “minority groups.”[7] 


In the same exchange, Justice Jackson challenged Petitioner’s argument that holistic review processes can be completely independent of race. Petitioner argued that race alone is “not consistent with the Constitution… [and] not consistent with other holistic approaches… for example… one thing you can’t strike a juror for in part is their race.” He later added that diversity can be achieved without race conscious policies. For example, “Florida is holistic… the California system is holistic…Michigan is still holistic.” These examples illustrate that race-blind policies do not automatically lead to a lack of diversity in student bodies. In California “39% of state residents are Latino, 35% are [W]hite, 15% are Asian American or Pacific Islander, 5% are Black, 4% are multiracial, and fewer than 1% are Native American or Alaska Natives.”[8] Similarly, the California State University system is 41.5% Latino, 23% White, 15.9% Asian American or Pacific Islander, 4% Black, 4.4% multicultural, fewer than 1% Native American or Alaska Natives, and 11% other/unknown/nonresident alien.[9] It seems that diversity can be achieved without race conscious policies.


Near the end of Petitioner’s time, Justice Jackson indicates that prohibiting race-conscious admission policies while allowing legacy benefits will negatively impact Blacks. White applicants whose families have attended UNC for generations benefit from legacy benefits but Black applicants, descendants of slaves, see no benefit and are disadvantaged by the policy. Petitioner stated that legacy benefits differ from racial consideration: the latter is strictly prohibited by the Constitution. Additionally, Petitioner commented, “[o]bviously, nothing stops UNC from honoring those who have overcome slavery or recognizing its past contribution to racial segregation. But the question is, is that a basis to make decisions about admission of students who are born in 2003? And I don't think that it necessarily is.”

Today, many suggest that publicly funded colleges should not consider legacy. Whether that is or is not a good policy is for colleges and legislatures to decide. “What the Equal Protection Clause does prohibit are classifications made on the basis of race. So while legacy preferences can stand under the Constitution, racial discrimination cannot.”[10] Justices should not “twist the Constitution to invalidate legacy preferences or otherwise impose [their] vision of higher education admissions on the Nation.”[11]


Over the next few months, Americans will eagerly await the Court’s decision. Despite concerns raised by Justice Jackson, I remain confident that race-based affirmative action is near an end.[12]


* A special thanks to Andrew Gossage and Nazo Demirdjian for their helpful edits.

[1] Oral arguments can be found at Students for Fair Admissions, Inc. v. University of North Carolina, SCOTUSblog (last visited Oct. 31, 2022),

[2] See Clip of Merrill v. Milligan oral argument, CSPAN, (Justice Jackson arguing that the original intent of
the Thirteenth, Fourteenth, and Fifteenth Amendments was not to create race-blind protections).

[3] See e.g., Mark Joseph Stern, Hear Ketanji Brown Jackson Use Progressive Originalism to Refute Alabama’s Attack on the Voting Rights Act, Slate (Oct. 4, 2022), but see Adam Liptak, Justice Jackson Joins the Supreme Court, and the Debate Over Originalism, New York Times (Oct. 10, 2022), (Pointing out that Justice Jackson identified herself as an originalist during her confirmation hearings).

[4] Keith E. Whittington, The New Originalism, 2 GEO. J.L. & PUB. POL’Y 599 (2004); Randy E. Barnett, The Gravitational Force of Originalism, 82 Fordham L. Rev. 411 (2013); but see John O. McGinnis and Michael B. Rappaport, Unifying Original Intent and Original Public Meaning, 113 Nw. U. L. Rev. 1371 (2019).

[5] See Gader Wren, The Establishment Clause: No Longer a Lemon, 100 U. Det. Mercy L. Rev. Online _ (forthcoming 2022).

[6] See e.g., Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (Standing consist of three parts: injury in fact, injury is traceable to defendant, and injury is likely redressable by the court).

[7] Grutter v. Bollinger, 539 U.S. 306, 371 (2003) (Thomas J., concurring in part, dissenting in part).

[8] Marisol Cuellar Mejia et al., California’s Population, Public Policy Institute of California (last visited Nov. 3, 2022),,according%20to%20the%202020%20Census..

[9] Fall 2018 Enrollment Demographics, The California State University (last visited Nov. 3, 2022),

[10] Supra note 7 at 368.

[11] Id.

[12] Gader Wren, Is Race-Based Affirmative Action Near an End?, Boyd School of Law Student Blog (Oct. 18, 2022),

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