“Color-Blind” Admissions Continue to Hurt Us

Summary

Amicus With Dahlia Lithwick | “Color-Blind” Admissions Continue to Hurt Us

Date: September 27, 2025
Host: Dahlia Lithwick
Guest: Justin Driver, Yale Law Professor and author of The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education

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Main Theme & Purpose

This episode dives deep into the Supreme Court’s 2023 SFFA v. Harvard decision, which struck down affirmative action in higher education, analyzing its immediate aftermath and wide-ranging consequences. With guest Justin Driver, Dahlia Lithwick explores how the Court’s embrace of “color-blind” legal reasoning is restructuring not only university admissions but the fabric of American racial and social justice more broadly. The conversation interrogates the legal, historical, and moral underpinnings of affirmative action, the present and future of racial equity in education, and the broader implications for civil rights.

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Key Discussion Points & Insights

1. Affirmative Action: A “Boutique” Policy and Its Outsized Significance

• Why so polarizing?

  • Despite its direct impact on a relatively small number of people, affirmative action is fiercely debated due to its association with access to elite institutions and the nation’s unfinished racial history ([22:52]).
  • Quote (Justin Driver, 22:52):
    “It’s about high stakes admissions to a handful of elite colleges that hold a disproportionate amount of influence in American society. And then you throw in race, which is the most stubborn, thorny topic throughout American history. And those two things combine in the topic of affirmative action.”

• Impact on society:

  • Affirmative action significantly increased diversity in the professional classes and challenged entrenched racial hierarchies.
  • Driver compares its transformative power to the GI Bill ([24:13]).

2. Aftermath of SFFA v. Harvard: The Numbers Don't Lie

• Immediate impact:

  • Notable and rapid declines in Black student enrollment at leading universities: MIT (15%→5%), Amherst (11%→3%), Ivy Leagues such as Brown, Columbia, Cornell, Princeton saw steep drops ([26:02]).
  • Harvard Law School's Black 1L population at its lowest since the mid-1960s ([27:00]).
  • Risk of a "lost generation" of Black students on elite campuses ([27:27]).

• Broader ramifications:

  • The decision is already cascading into other domains: attacks on DEI initiatives, threats to remaining civil rights protections, and moves into corporate America and the military ([29:50], [32:22]).

3. The Expansion of “Color-blindness”

• Post-ruling uses:
  • The SFFA ruling is being wielded beyond its original context by the Trump administration and political allies to intimidate universities, crack down on diversity efforts, and extract data for further policing enrollments ([32:22]).
  • Specific example: the administration’s interpretation that any action with a diversity-related outcome (e.g., going test-optional) may be illegal; many policies, never explicitly racial, are being swept in ([34:00]).
  • Quote (Justin Driver, 35:52):
    “The Trump administration is of course attacking various independent institutions in American society, the media, law firms, universities. And it’s a very dangerous position for American society to be in, to allow the Trump administration just to intimidate them and to allow them to abandon their principles.”

4. The Legal Battleground: Competing Doctrines of Equality

• Two visions of the 14th Amendment:

  • Anti-classification (color-blindness): The Constitution is violated any time race is considered in decision-making. Favored by conservatives.
  • Anti-subordination: The Constitution is violated when policies entrench racial hierarchies or subordination. Favored by liberals but more complex ([38:26]).

• Justice Clarence Thomas’s unique role:

  • Thomas appropriates anti-subordination language to argue that affirmative action itself is racist, claiming it reinforces harmful stereotypes about Black inferiority ([48:39]).

• Complex path forward:

  • Current doctrine compels universities to avoid race as a box-checked category but encourages essays about “experiences with discrimination”—thus potentially requiring more overt narratives of victimization ([54:53], [56:02]).

5. The Cost of Color-Blind Reasoning

• Merit and stigma:

  • The expectation that removing affirmative action will erase stigma attached to Black students is historically disproven: California’s post-affirmative action experience showed exclusion, not belonging ([64:34]).
  • Quote (Justin Driver, 65:10):
    “…we are entering the worst of all worlds where there are a tiny number of black students and doubts about black intellectual competence remain.”

• Justice Thomas’s paradox:

  • Despite championing admission policies like Texas’s Top 10% plan for their “meritocracy,” Thomas still believes stigma persists regardless ([68:45]).

6. Finding Solutions Amid Scarcity and Political Assault

• Concrete steps:
  • Use race-neutral but correlated criteria (first-generation status, local recruitment, Opportunity Atlas census data, preferences for slavery’s descendants) to rebuild diversity ([71:58]–[77:00]).
  • Call for universities to defend their principles under extreme political pressure, and not to capitulate to intimidation ([36:23], [77:51]).
  • Empirical data: Class-only approaches still underrepresent Black students even if overall poverty representation increases ([75:35]).

7. The Supreme Court’s Legitimacy Crisis

• A court no longer “behaving like a court”:
  • Roberts Court overturning decades of precedent (Bakke, Roe), abandoning even its stated principles of minimalism and gradualism ([79:32]–[82:23]).
  • Quote (Justin Driver, 80:32):
    “The Supreme Court really is ripping up and destroying people’s settled expectations in an incredibly hasty fashion... the Roberts Court is moving at breakneck speed and it is imperiling the legitimacy of the institution that Chief Justice Roberts loves and leads.”

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Notable Quotes & Moments

• On the seismic reach of SFFA (Dahlia Lithwick, 29:50):
  “What looked as though it was a pretty limited decision… suddenly now is being used… It’s leached into the C-suite, into the military… endless ripples, can’t be contained.”

• On the “arms race” in legal retaliation (Mark Joseph Stern, 14:39):
  “I fear that Democrats are going to start saying… that if this is how Republican presidents are going to play the game, that maybe they want to turn around and start prosecuting people on questionable charges as well once they retake power.”

• On finding grace amid scarcity (Dahlia Lithwick, 69:48):
  “It is… arresting, Justin, to hear you talk about affording one another grace in this moment. Affirmative action … is a topic so fraught in no small part because… this ethos of scarcity that was around… has now been scaled up on steroids.”

• On what’s lost beyond admissions (Justin Driver, 27:27):
  “We are in the midst of seeing, or perhaps more accurately, not seeing, a lost generation of Black students on the nation’s foremost campuses. And that is a big deal unto itself.”

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Timestamps for Key Segments

• 01:37: Show proper begins, co-host banter
• 21:58: Dahlia introduces Justin Driver and sets up the central issues on affirmative action
• 22:52: Driver’s theory on why affirmative action is so polarizing
• 26:02: Effects of SFFA v. Harvard on Black student enrollment
• 32:22: Expansion of SFFA’s influence and misuse in policy enforcement
• 38:26: Explanation of anti-classification vs. anti-subordination
• 43:09: Chief Justice Roberts’s reasoning and opinion in SFFA
• 48:39: Clarence Thomas’s anti-subordination argument and personal narrative
• 54:53: Critique of liberal positions and dissenting opinions
• 64:34: The myth of erasing stigma by eliminating affirmative action
• 71:58: Concrete steps universities can take post-SFFA
• 77:51: On court legitimacy and Chief Justice Roberts's abandonment of minimalism
• 79:32–82:23: Final thoughts on what to do with a court not behaving like a court
• 82:23: Show conclusion and thanks

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Tone & Style

The episode is characterized by intellectual rigor, urgent concern, and an undercurrent of somberness about the future of constitutional law and civil rights. Both Lithwick and Driver maintain a tone of respectful candor, calling for nuanced understanding and “grace,” even as they do not shy away from describing the peril facing American institutions and marginalized communities.

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For Those Who Haven’t Listened

This episode is essential for understanding not only the immediate, measurable effects of the Supreme Court’s affirmative action ban, but also the ideological, legal, and social threads — color-blindness, anti-subordination, institutional legitimacy — that are remaking American law and society. With historical depth and policy insight, Justin Driver and Dahlia Lithwick chart both the losses and the possible, hard-fought pathways forward.

Transcript

[Justin Driver]

Mike and Alyssa are always trying to outdo each other. When Alyssa got a small water bottle, Mike showed up with a 4 liter jug. When Mike started gardening, Alyssa started beekeeping. Oh, come on. They called a truce for their holiday and used Expedia trip planner to collaborate on all the details of their trip. Once there, Mike still did more laps around the pool.

[Dahlia Lithwick]

Whatever.

[Justin Driver]

You were made to outdo your holidays. We were made to help organize the competition. Expedia Made to Travel. Recently we asked some people about sharing their New York Times accounts.

[Dana]

My name is Dana. I am a subscriber to the New York Times, but my husband isn't and it would be really nice to be able to share a recipe or an article or compete with him in wordle or connections.

[Justin Driver]

Thank you, Dana. We heard you introducing the New York Times Family subscription. One subscription, up to four separate logins for anyone in your life. Find out [e-mail] family.

[Dahlia Lithwick]

I'm Dahlia Lithwick, this is Amicus Slate's podcast about the law and the Supreme Court. Welcome back. And welcome to Mark Joseph Stern, my cherished co host and jurisprudential. Ride or die. Hi Mark.

[Mark Joseph Stern]

Hi Dolly. It feels so good to be cherished today of all days. It's what I needed. So thank you.

[Dahlia Lithwick]

I would burst into song, but you're probably too young to remember the song.

[Mark Joseph Stern]

Cherish, but also too depressed by the news to do a good duet. To do a good.

[Dahlia Lithwick]

Excellent.

[Mark Joseph Stern]

Yeah.

[Dahlia Lithwick]

So listen, we are jumping in the top of the regular show because surprising no one who was paying attention. Former FBI director James Comey was indicted on Thursday evening by a grand jury in the Eastern District of Virginia on a pair of charges. Making false statements, obstruction of Congress. There's so much here, Mark, that is really alarming, if not for many of us. Break the glass. Terrifying. And I thought maybe we could break down the news, you and I, as crisply as possible. Which means. Can we just start with the murky part, which is what is it that Jim Comey has been indicted for?

[Mark Joseph Stern]

So the indictment is less than two pages, which is extremely unusual. These are usually much longer because they allege an actual fact pattern of criminality. That didn't happen here. Instead, it simply accuses Comey of claiming in testimony before Congress that he never, quote, authorized someone else at the FBI to be an anonymous source in news reports. End quote. So the indictment accuses him of perjury and on the grounds that he did in fact authorize an FBI colleague to leak information to the press, specifically, it seems, about the Clinton foundation investigation in 2016, although the particulars there don't really matter. The allegation stems from an exchange that Comey had with Senator ted Cruz in September 2020, when Cruz asked Comey if he had ever authorized a leak, and Comey said no. Trump and his allies have insisted that that statement from Comey, that denial, was f. Because, as Cruz claimed during that very exchange, former deputy director Andrew McCabe allegedly testified that Comey had authorized the disclosure. So, in summary, the accusation is that Comey said he never authorized a leak. He said that before Congress under oath, and in fact, according to the Justice Department, he did authorize a leak, making that perjury.

[Dahlia Lithwick]

Right. And before we go any further, let's just talk about. Because this has been around for a very long time, is there any legitimacy at all to the claim that Jim Comey was lying or misrepresenting in that September 2020 testimony?

[Mark Joseph Stern]

No. No, not at all. It's bogus. It's nonsense. It's, like, demonstrably nonsense. So let me lay this out. And I realize this can get a little head spinny, because it's all built upon several layers of conspiracy theories, but let me just explain. There are two huge problems with the theory that Comey perjured himself. The first is that the Justice Department's Inspector General, Michael Horowitz, already exhaustively investigated this episode during Trump's first term, and he concluded that to the extent there was any conflict between Comey and McCabe's accounts of this incident, the, quote, overwhelming weight of evidence supported Comey's version, end quote. So McCabe's story, according to the inspector general, was inconsistent and unreliable. Comey's story was very consistent and very reliable. And I think that that's especially telling, Dal, because Horowitz was deeply critical of the FBI's Russia probe into Trump, and Trump often praised Horowitz and kept him on in the government when. When he fired all of those other inspectors general at the beginning of his second term. So this was not an exoneration of Comey from, like, a Comey ally or a liberal or a Democrat or anything like that. This was a Comey skeptic saying that even he had to admit that the evidence suggested that Comey was telling the truth. But second, this is even more important. Even if you take McCabe's account at face value, it still doesn't prove or even suggest that Comey lied to Congress. And that is because McCabe never said that Comey authorized him to leak in advance. That's just not true. What McCabe claimed is that he leaked without Comey's permission and then told Comey afterward. And then Comey supposedly expressed approval of the leak after the fact. Now, to be clear, the Comey denies all of that as well. But the point here is that even if McCabe's version were true, it still wouldn't mean that Comey authorized the leak. It would simply mean that he said that the leak was fine after it had already occurred. So there's just zero evidence to support the indictment's claim that Comey committed any kind of perjury.

[Dahlia Lithwick]

And I think, Mark, we should, at least for purposes of being perfectly fair, tell the old joke. Recite the old joke about how easy it is to get a grand jury to indict anything up to and including a ham sandwich. Comey's not in the room. His lawyers are not in the room. The standard of proof is really low.

[Mark Joseph Stern]

Yes. And I will also just note that this was brought in the Eastern District of Virginia only because Comey happened to be testifying over zoom, since this was in the thick of the pandemic. And it could have been brought in D.C. but clearly the Trump administration worried that a D.C. grand jury wouldn't believe this. And we've seen D.C. grand juries again and again refusing to indict individuals who are faced with openly political prosecutions or sort of trumped up charges designed to suppress dissent. And look, it would have been so easy for Trump to get U.S. attorney Janine Pirro to bring these charges in D.C. but I think the entire executive branch was afraid of facing a D.C. grant jury, so they brought this in Virginia instead, hoping that they would find a more pliant grand jury. They did. But even then, the grand jury refused to indict on one of the three charges, which is in itself very, very rare already. So the grand jury wasn't fully buying it. They just dragged this over the finish line by bringing it over the river in Virginia, where there were maybe just enough grand jurors who raised an eyebrow at Comey that they could get these charges to an indictment.

[Dahlia Lithwick]

And none of this is the worst part of it, because the real nightmare, for our purposes, is how this came about. And you've talked about it a little bit. You know, what it took to get this before a grand jury in the Eastern District. But it was so much worse than that because you had a bunch of career prosecutors, including an incredibly respected U.S. attorney in the Eastern District, declining to prosecute this case and Trump joyously saying, you're fired. And then who takes Over.

[Mark Joseph Stern]

Yeah. So then Lindsey Halligan takes over. Trump pushes out the actual U.S. attorney in the Eastern District of Virginia and installs his own attorney, Lindsey Halligan, who has never prosecuted a case before, who previously practiced insurance law in Florida before joining Trump's legal team in 2022, and then now being installed on day of this past week in the Eastern District of Virginia for the sole purpose of indicting Jim Comey because career officials wouldn't do it. Right. Career prosecutors refused. The previous U.S. attorney refused. Career prosecutors actually urged Halligan not to charge Comey because there was no factual justification for doing so. And reportedly, Halligan wound up personally presenting the case to the grand jury, probably because nobody else in the office would, which is very, very weird and unusual for a U.S. attorney. So it's clear, clear that Trump orchestrated this entire prosecution because he is still angry at Comey over the Russia investigation and perhaps other criticisms that Comey has made of him. The entire episode reeks of political interference and partisan bias. It's basically unprecedented, as far as I can tell. There's just no doubt here that the president himself overruled the judgment of actual qualified prosecutors in order to persecute somebody that he personally doesn't like.

[Dahlia Lithwick]

And let's just add to that. Halligan's signature is the only signature on this indictment. Right. As you said, there's a memo saying, don't do this. She went ahead and pulled the trigger. Given how transparently bogus this is and how, as you said from the jump, there's no merit, does this just get dismissed immediately by a judge? Does Comey get to go and say, a malicious prosecution? B, there's no there, there's. And if not, how does this even proceed to go to a trial?

[Mark Joseph Stern]

So the Supreme Court has, unfortunately made it very difficult for a defendant to defeat criminal charges by raising a claim of selected prosecution. It's a very high bar. But if there were ever a case to clear that bar, I do think it's this one. Again, it can't be stressed enough. There is a massive public record now of Trump pushing his Justice Department to charge Comey. Trump has shown that that is because he hates Comey personally. And partis animus is just never a legitimate basis for a federal prosecution. It is unconstitutional, even, I think, to this Supreme Court for the government to deprive a person of their liberty because of political animosity against them. And I think it'll be really easy for Comey to show that this is a selective prosecution because the Justice Department has declined to charge other people who have actually lied to Congress, quite clearly fibbed or just flat out provided falsehoods to Congress under oath. That includes, oh, say, Emile Beauvais, now a judge on the Third Circuit, who quite obviously perjured himself when he denied telling his subordinates to defy the courts. I mean, there is a clear conflict there between accounts. And the much more credible account is that Beauvais lied and yet there were no charges against him. And instead, of course, he was elevated to a federal appeals court. So we have similarly situated individuals who get off scot free for actual perjury, and then Comey gets indicted for a bogus claim of perjury. I think that is the exact kind of thing that a judge would need to see in order to dismiss a case as unconstitutional. Selective prosecution. And I'll note this case has been assigned to Judge Michael Nachmanoff, who is a Biden appointee and a former public defender who surely knows this, this part of the law inside and out. And I do expect Nachmanov to closely scrutinize all of the events that led to this indictment and give very serious consideration to a claim of selected prosecution if Comey decides to bring one.

[Dahlia Lithwick]

I think I want to end by just flagging that. We could have sort of finished there the lawyerly conversation about chances of success on the merits and what it all means in terms of the law. But of course, this is about so much more than the law. And we would be remiss if we didn't say, what does this mean for the Justice Department? What does this mean for the notion that I'm mindful of Justice Robert Jackson's speech to federal prosecutors about how they conduct themselves. The reason this feels like a break the glass moment. And I'm quoting MSNBC's Candelane saying his Justice Department sources told him, quote, this is among the worst abuses in DOJ history. I think that what I want to end with, Mark, is just this question of, for a lot of people, this is the moment that the DOJ does not recover from.

[Mark Joseph Stern]

I fear that that is true. I fear that all of the post Watergate reforms and norms that were designed to put a buffer between the White House and the Justice Department have clearly been abolished and been abolished in record time. Right. It only took a few months into Trump's second term to do away with that buffer, which served the American people well. Really, I do not think that we want federal law enforcement apparatus guided by the president's own personal whims and grudges. But that is where we are now. Um, there's just no denying it. And I fear that there is also no turning back. I do think that Democrats are going to start saying maybe now, maybe in the future, that they shouldn't unilaterally disarm, that if this is how Republican presidents are going to play the game, that maybe they want to turn around and start prosecuting people on questionable charges as well once they retake power. I fear that this could lead to a kind of arms race where every president just comes in and starts throwing people in jail based on trumped up charges. I mean, you know, maybe the Supreme Court will say that only Republican presidents get to prosecute their political enemies, but no matter where we go from here, it is absolutely a shattering moment for the Justice Department itself. No one can seriously argue that this serves the cause of justice. No one can seriously argue that this is what federal prosecutors felt their oath required them to do. This is all being orchestrated and directed by a corrupt president who wants to carry out his grudge to the logical conclusion of throwing somebody in prison. It is appalling. It is a complete betrayal of the agency's mission. I think a lot of people are probably going to quit over this, and I completely understand why. You know, most career prosecutors, most folks who sign up to work at the Justice Department, they are some of the best and brightest. They truly believe in the mission. They think it is very important to dispense equal justice under, under law without fear or favor. And all of this is the exact opposite of that. So I don't know how the agency recruits good lawyers moving forward. I don't know how it maintains any kind of integrity or trustworthiness among the American people or among judges. All of this feels like we are watching the Justice Department set its reputation on fire. After spending so many decades rebuilding that reputation after Watergate, preserving it, shining it, buffing it under Republican and Democratic presidents alike. Now, almost overnight, it seems to be all gone.

[Dahlia Lithwick]

Yeah. And it's not lost on either of us. I don't think that James Comey's message in the wake of this indictment was not about the heartbreak he had for himself or his family, who have suffered mightily in the last couple of weeks. But for the department itself, it is really a body blow. And I think we should maybe end on the note that to our friends who are prosecutors at the DOJ and who work in other capacities at the doj, this really does feel like a kind of exit loyalty voice moment. It is excruciating to imagine how you navigate the coming weeks but this is where we are and it's the quiet parts out loud.

[Mark Joseph Stern]

And if you see misconduct or you want to blow the whistle, our lines are open.

[Dahlia Lithwick]

Thank you so much Mark. Thanks Dalia and Slate plus members. That is not all @ all. You've got more Mark. More weaponization, More Bad moon rising at the Supreme Court Mark and I are going to talk about Humphrey's executor in today's Amicus bonus episode. But for right now, let's turn to an overdue and I think vital conversation about the two pronged attack on higher education coming from the administration. And as always, enabled by SCOTUS Foreign. This podcast is brought to you by Progressive Insurance Fiscally responsible financial geniuses, Monetary magicians. These are things people say about drivers who switch their car insurance to Progressive and save hundreds because Progressive offers discounts for paying in full over owning a home and more. Plus, you can count on their great customer service to help you when you need it. So your dollar goes a long way. Visit progressive.com to see if you could save on car insurance, Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states or situations. Fall is in full swing and it's the perfect time to refresh your wardrobe with pieces that feel as good as they look. Luckily, Quince makes it easy to look polished and stay warm and save big without compromising on quality. Still loving this Quince slip dress that you can pair with cute little boots and a cardigan all autumn long. Quince has all the elevated essentials for fall. Think 100% Mongolian cashmere from $50 washable. Sell for cups and skirts, perfectly tailored denim, all at prices that feel too good to be true. Keep it classic and cozy this fall with long lasting staples from quince. Go to quince.comamicus for free shipping on your order and 365 day returns. That's Q-U-I-N-C-E.comamicus to get free shipping and 365 day returns quince.comamic now some of you might recall that two and a half years ago we launched a package at Slate and a larger conversation about journalism and the Supreme Court and the stories that we tell about the law and the nine justices who interpret it. For the rest of America. It was called Disorder in the Court. And since then things have only gotten more disorderly. But one of the guiding principles that really emerged, at least for me from that effort, was that we need to do a better job, not just previewing a handful of attention grabbing cases coming up in the term, but we need to do a better job tracking and tracing what happens after a blockbuster opinion comes down. It just feels like there is no SCOTUS case four years later beat, but there should be. And so we pledged at the time to really examine the real world, real time effects of the Court's big rulings. But doing so in the years that follow, there has been, to be sure, incredible work done in this vein since Dobbs came down. But we pay a lot less attention to other, often hugely significant cases. And that's why this week we thought we might look back to look forward. And we wanted to do that with Justin Driver. He is a Yale Law Professor. He is the author of a book that just dropped the Fall of Affirmative Action, Race, the Supreme Court, and the of Higher Education. Justin is the Robert R. Slaughter professor of Law at Yale Law School. He's an expert in the field of constitutional law. His first book, the Schoolhouse Public Education, the Supreme Court and the Battle for the American Mind, was selected as a Washington Post Notable Book of the Year and a New York Times Book Review Editor's Choice. Justin, I've wanted to have you on the show for a very long time, and this feels like a good moment to do some version of nostalgia and prediction before the term begins. So congrats on the book and thank you for being with us.

[Justin Driver]

Thanks so much for having me. I'm really honored and delighted to be with you.

[Dahlia Lithwick]

And I thought before we really go deep on sort of the legal history and the cultural conversation around affirmative action in the United States, I think I want to flag you say several places in your book, but you open with this claim that it is just one of the most polarizing issues in the country. And I wonder if you have just a quickie, elevator pitch kind of theory of why, you know, what you describe as a boutique social policy, right, that doesn't by any means affect all of us, why this came to be the North Star of either how we think about rank injustice or the key that unlocks all justice in the public imagination and the discourse around it. It seems there's a mismatch right there.

[Justin Driver]

This is among the most incendiary topics in all of American society. I think there are a few reasons for that. One is it's about high stakes admissions to a handful of elite colleges that hold a disproportionate amount of influence in American society. And then you throw in race, which is the most stubborn, thorny topic throughout American history. And those two things combine in the topic of Affirmative action. And so, exactly as you say, the number of people is relatively small who are affected in terms of being granted admission to elite higher education. But I do try to make the claim that the policy of affirmative action has had enormous benefits for American society. It has transformed our nation for the better. The Supreme Court of the United States had, before SFFA versus Harvard two years ago, repeatedly, repeatedly upheld affirmative action. But it had done so through sort of gritted teeth, if you will. A lot of ambivalence surrounded the topic. I don't think that ambivalence is warranted. You know, as a result of affirmative action, the black professional class increased dramatically. The number of attorneys, physicians, engineers, professors went from being relatively foreign to familiar. So this represented, in my view, nothing less than an assault on American racial hierarchy and transformed our nation for the better. Indeed, I believe that affirmative action belongs right in the same exalted company as the GI Bill as a significant, positive, transformational mechanism for American society, social mobility.

[Dahlia Lithwick]

As I said in my introduction, everybody was very fired up in the end of the term in 2023. SFFA, as we all recall, even though it seems a thousand years ago, really, really did stand for the end of something either terrible or very important, depending on where you sat for the first time. The Trump constructed majority of the Supreme Court strikes down affirmative action because, per John Roberts, right, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. And this is supposed to, you know, cue this post racial neuropath nirvana as you describe it, that we all live in now. But I thought before we even get to how the Court arrives there, it would be really helpful if you could do what I suggested we don't do. Enough of which is just sketch out for me what has happened in the very brief wake of SFFA in terms of minority admissions in higher education around the country. Because this is a case that has actually had measurable effects extremely rapidly.

[Justin Driver]

Yes. The reason I wrote this book is that I feared that the Supreme Court's decision from 2023 would lead Black enrollment at many of our nation's leading universities to plummet. And I actually set aside another book project that I was working on at the time because I felt compelled to try to think of creative solutions that are completely consistent with the Supreme Court's decision to arrest and counteract what I feared would be those plummeting numbers. And I'm sorry to say that my prediction was borne out in the aftermath of the Supreme Court's decision. Black enrollment at MIT in the first year class went from 15% to 5%. Amherst went from 11% to 3%. Several Ivy League colleges suffered massive declines in black enrollment, including Brown, Columbia, Cornell, Princeton. And we've seen these dynamics unfold at other schools. My alma mater, Harvard Law School, in the immediate class after SFFA versus Harvard, had the smallest number of black 1Ls since the mid-1960s. So I think that we are in the midst of seeing, or perhaps more accurately, not seeing, a lost generation of black students on the nation's foremost campuses. And that is a big deal unto itself. But of course, there are also going to be cascading consequences for American society, given that who was granted admission to these relatively small number of leading institutions plays a disproportionate role in shaping American society. It should not be that way in my normative vision, but it is that way as a descriptive matter. And we should also place this in a larger context. These are very distressing times for those of us who are concerned with racial equality. President Trump obviously rose to political power in part by denying that President Obama was eligible for the presidency. He ran in 2016, and he said that a judge who was born in Indiana could not be fair in assessing his case because he was a Mexican. Quote. And of course, Trump 2.0 makes Trump 1.0 seem quite mild in comparison, given that President Trump has denied the existence of birthright citizenship. And so even recently at the Supreme Court of the United States. You're exactly right when you say that Chief Justice Justice Roberts has written these soaring declarations. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. And yet just recently, we had a Supreme court decision upholding ICE's racially inflected profiling of people of Mexican descent. So, yeah, we have to stop discrimination on the basis of race. Unless you happen to be Mexican and appear Mexican, I should say, or speak accented English even, and be hanging out near a Home Depot. The idea that they are vindicating colorblindness, full stop, is erroneous. And it is important to place the court's assault on affirmative action in some of this larger racial context that our nation, which I love dearly, is undergoing right now.

[Dahlia Lithwick]

Yeah, I think if I had to say what animated the desire to talk to you right at the beginning of the term, it is this quality of, you think back about sffa, it almost feels quaint, right? The degree to which it felt like, I mean, it was both an earthquake in higher education, for sure, but compared to what we're seeing now and what we are seeing tagged back to the kind of colorblind reasoning in SFFA is everything, right? It is absolutely seismic. And so there's this strange way in which, and this is such a theme, I think, of what we talk about on the show, but that which starts as a sort of John Roberts thought experiment unfolds in, as you're saying, these cascading ways in no small part because it's been blessed by the Supreme Court. And it is hard to make that connection concrete. But I do think that what looked as though it was a pretty limited decision, and we're gonna talk about the ways it was limited, suddenly now is being used. And you make the point in the book. You know, this has leached into the C suite. It's leached into an all out attack on affirmative action in military academies and in the military. I mean, it's endless ripples, can't be contained. And we're about to go into a term where what's left of the Voting Rights act is going to be questioned on the basis of this colorblindness theory. There is a way in which the Roberts court is almost powerful, washing these ideas. And then Stephen Miller and Pete Hegseth and Donald Trump and their friends take it to the mo and we are seeing this time and time again, as you're saying, in all kinds of attacks on diversity and inclusion and programs that are just trying to remediate racial injustices. It is so important, I think, to connect up the thinking not just of John Roberts. Your book is rooted in a piece that Justice Scalia wrote as a law professor. But this is where these ideas are hatched and it is legitimized in ways that allow Stephen Miller to go all out 110% every time. Right?

[Justin Driver]

I think you're exactly right. The Supreme Court's decision, in my view, was catastrophically wrong, erroneous. It also, though, did not sweep nearly as far as the Trump administration is asserting that it swept. The Trump administration is attempting to brandish SFFA versus Harvard as a method of intimidating universities into depressing black and brown enrollment on our nation's leading campuses. I think that our nation is facing profound problems right now. Now, too many black and brown students at fancy schools is not among those problems. Let me give you an example of how the Trump administration is brandishing the decision. The Trump administration has issued guidance saying that the Supreme Court's decision, for example, prohibits universities from abandoning standardized testing if they do so with an eye toward increasing racial diversity on campus. But SFFA versus Harvard says nothing of the kind Chief Justice Roberts opinion speaks about prohibiting universities from considering what he calls race qua race. And that, in my view, leaves universities with a considerable amount of latitude to adopt and implement policies that would maintain and allow racial diversity to rebound at universities that have witnessed shortfalls. Let me just give you one other concrete example of what the Trump administration is up to here. They have been assaulting higher education generally. They have entered into more or less consent decrees with Columbia and Brown and extracted cash from these universities to the tune of millions of dollars. And they also secured the ability that Brown and Columbia would hand over its admissions data, broken down by race, for both accepted and rejected applicants. This again is driven by a desire to lower black and Brown enrollment. And what I fear is going to happen is that Brown and Columbia will further lower their already quite lowered numbers of black and Brown students. And then the Trump administration will waive the these numbers around say, 5% black at brown or Columbia and say that these are the real numbers and that anybody who has black enrollment that's north of 5% is cheating. So this story is going to continue to unfold for years to come. And I am of the view that it's incumbent upon these universities to stand up for their principles and not to capitulate to this mistaken understanding of law. I want to be clear. University leaders are in a difficult position, to put it mildly. These are excruciating times for university leaders. So I don't want to say that it's easy, but the Trump administration is of course attacking various independent institutions in American society, the media, media, law firms, universities. And it's a very dangerous position for American society to be in, to allow the Trump administration just to intimidate them and to allow them to abandon their principles. I know that it's going to be painful for universities, but I think that the wiser course is to stand their ground and wait for the courts to interpret the the law.

[Dahlia Lithwick]

And I think, Justin, that what you just said there is exactly why it's really important to do what you sought to do in the book, which is let's strip away the cartoons, like let's have a clear eyed conversation about how we got sffa, because it does inflect on all the other conversations that we, in other words, the silos are killing us. And we have to be really mindful of how this bleeds into other conversations about how we vote. Right. And who gets to be at schools and who, as you said, gets to be a citizen. And if you can't get perfectly clear on the doctrine and how the doctrine came to be, then you're just going to fall into the same traps again. And I think, you know, I appreciate that in the book, the willingness to say, let's get very, very, very focused on where this opinion is wobbly, where some of the critiques are wrong, because I think that's the conversation we have to have, not just about affirmative action. And maybe before we dig deep on sffa, I wonder if you can give us, in your con law capacity, just a very quick refresher on these two sometimes warring principles at work in the equal protection clause. And you describe in the book, and I think it's just maybe not intuitive for Everybody that there's two different ways to think about what the 14th Amendment was trying to protect equally. And one view of it is, is this ban on all racial classifications. Right. What we would call colorblindness. And then there is this second anti subordination principle. And if you could just explain, they don't come about in the same ways at the same time. They're both deployed in different ways by both sides. And I think one of the points you've been trying to make in the book is some of the ways that we talk past each other is a misapprehension of what those two principles are all about.

[Justin Driver]

Yeah, that's exactly right. So. So the equal protection clause can be understood to prohibit two different things. Prohibit, on the one hand, exactly as you said, racial classifications, and on the other hand, prohibit racial subordination. So with respect to racial classifications, you can understand Brown vs Board of Education as vindicating the anti classification principle that students should not be assigned to schools on the basis of race. You can also, though understand Brown to be vindicating the anti subordination principle that was really at issue in that case was that black people were being sent to separate schools because of a belief in inferiority. And what principle one subscribes to really matters tremendously in the context of affirmative action anticlassification folks overwhelmingly associated with conservatives would say that affirmative action must go because it involves individual racial classifications. Applicants are checking boxes and there's some different treatment based on that. But if one subscribes to the anti subordination principle, many liberals would say affirmative action is a okay and it passes constitutional muster because those programs are not dedicated to suggesting that black and brown people are inferior. To the contrary, it's predicated on sort of racial uplift. One of the difficulties here, though, is that liberals for decades have been sort of pounding their fists on the table and saying, well, anti subordination means that affirmative action is totally constitutionally permissible. And I think the story is more complicated than that. One of the things I try to do in the book book is right about how Justice Thomas can be understood as complicating this traditional binary. Justice Thomas often says he's an anti classification person, but he also claims the mantle of anti subordination. He contends that affirmative action programs and racial integration programs more broadly are predicated on a theory of black inferiority. The reason reason that these programs exist, Justice Thomas says, is that they believe that black people can't make it on their own when left to their own devices. And that is a racist notion. Justice Thomas insists. And Justice Thomas is not alone. Many of my fellow liberals, including Professor Randall Kennedy of Harvard, my colleague Professor Stephen Carter, have defended affirmative action, but also said that yes, there is a subordinating component component of affirmative action programs. And I actually think that in order to understand the students For Fair Admissions vs. Harvard case, anti subordination belongs at the center of the frame. The organization SFFA vs. Harvard contended that Harvard's admissions program really did succeed in subordinating Asian American applicants because those students received received lower personal ratings as part of the Harvard admissions process. And liberals have not fully engaged with these sorts of arguments and tended to sort of brush them aside. And one of the things I'm trying to do in the book is to say we can at least have a more coherent conversation by understanding the arguments that the other side is making with reality clarity.

[Dahlia Lithwick]

I wonder if we can trace for a minute how the nine justices reach this 6 to 3 decision in SFFA. Maybe start with and you laid out the way to think about equal protection, but can you start with what the John Roberts opinion for the majority held? I think in the book you describe this as, this is not the incrementalist, cautious John Roberts of Twinkle Eyed Boy fame. This is a guy on a mission. And his whole colorblind means colorblind worldview, which is decades in the making, really does match with this very rosy take we've heard from him before about. Oh, discrimination in voting is over. We have no problem with schools. So can you just talk about how Roberts gets to his equal protection determination and then we can talk about the a sense.

[Justin Driver]

Sure. So Chief Justice Roberts writes the opinion for the court here. A core project for him is race and what he would regard as rooting out racial discrimination. He says ending racial discrimination means ending all of it. And you know, he can be understood to be saying that the era of affirmative action is over. And again, the key part of the opinion is that he says that universities are prohibited from considering race qua race or race for the sake of race. And universities have understandably interpreted that decision to prohibit them from engaging in analyzing the racial boxes that students check during the admission cycle itself, including through the wait list. He also exactly as you say, styled himself as operating in an incrementalist fashion. My old boss, Justice o' Connor wrote an opinion for the Court in Gruder upholding affirmative action in 2003. She said there that it's been 25 years since the Court upheld affirmative action first in Bakke in 1978. And she says in 2003, we fully expect that in another 25 years affirmative action will no longer, longer be necessary. Chief Justice Roberts and Justice Kavanaugh in his concurring opinion endorsed this line, that they were actually Honoring Justice Oconnors 25 year sunset provision because the next class of students who were going to be admitted to Harvard and the University of North Carolina and other four year colleges was going to be admitted to the class of 2028. Therefore, 25 years plus 2003 gives you 2028. But that has to be a misguided understanding of what the sunset provision meant. In other words, I think must be tied to not the year of graduation, but instead the time of government decision making. After all, all law schools are typically three years rather than four and business schools are two years to get an mba, say. So by the logic of the opinion, Yale Law School and every other law school in the country should have been able to use affirmative action for an additional year. And Harvard Business School should have been able to use affirmative action for another two years. So Chief Justice Roberts does not say that the goal of racial diversity is prohibited in all contexts. And there's little reason to believe that the Supreme Court would hold that. After all, the Supreme Court has twice thought about admissions at the University of Texas and the top 10 percentage plan. That program was installed after the 5th Circuit got rid of affirmative action and legislators got together and said, said if we admit to UT Austin, every person who graduates in the top 10% of their graduating class, that will increase racial diversity at the University of Texas. So that's not using individual racial classifications, but the program exists and works. Because of the persistence of racial isolation in Texas high schools, the Supreme Court twice considered the University of Texas's admissions program. It has never suggested that the top 10% program is unconstitutional. Instead it paid attention to and actually upheld in Fisher 2, the University of Texas's use of individual racial classifications. But while law professors have been suggesting that, say, The Texas Top 10% program should be understood to be unconstitutional, the Supreme Court has never gone there and they have demonstrated an unwillingness to go there. So I do believe that universities have a whole host of mechanisms that remain open to them.

[Dahlia Lithwick]

You mentioned this when you were unpacking the sort of anti subordination reading of the Equal Protection Clause. But can you talk a little bit about particularly you've already mentioned Justice Clarence Thomas, who has made very plain that in his view, the project of doing away with affirmative action really does go to. You know, there is nothing that belittles a black student more than being told that they couldn't get there on the merits. That is a big part of the Thomas concurrence. And sffa Justice Gorsuch has a kind of different version of that. But can you just talk about some of the flavors of the concurrences because. Because I think again, it lights the way toward understanding what the objections will be to other attempts to remediate racial discrimination.

[Justin Driver]

Sure. I think the most interesting of the concurring opinions came from Justice Thomas. He actually uses the term anti subordination for the first time in the U.S. reports. Only one lower federal court had ever used that. Justice Justice Thomas portrayed himself as saying anti subordination is a bad idea from a bunch of Yale Law School professors. In effect, that's not the real vision of the Equal Protection Clause. And so he portrayed himself as with Justice Harlan vindicating anti classification. And ironically, though Justice Thomas does seem to embrace the anti subordination mindset. And this is something that dates back to his time as a justice in the 1990s, where he would say in a case out of Missouri that a program designed to promote integration is predicated on the idea that black kids need to sit next to white kids in order to learn. And that is, Justice Thomas would say, a lie. There's a history of black excellence in all black institutions, including at M street High School, aka Dunbar in Washington, D.C. that trained black elites and they went on to achieve great things. So I think it is important to understand how Justice Thomas is making significant moves and complicating the received wisdom that has been taught at law schools for generations. Another important aspect of Justice Thomas's writings in this area is this idea of misunderstanding, mismatch. This is an idea that goes back a long time. Justice Thomas says the problem with affirmative action is that it elevates students into realms for which they are ill prepared for success. So rather than going to the number one undergraduate institution in the country, people might go to the 15th or the 20th best undergraduate institution in the country. And in that realm, they could really flourish and do much better. One of the claims that I make in the book is that if you take this mismatch concern seriously, and I should say many excellent, empirically minded scholars have said that this idea does not really hold water. But if you do take it seriously, and many conservatives, including Justice Thomas, accept it as an article of faith, I believe that mismatch is going to be heightened rather than diminished under the new regime. And Justice Thomas himself has actually said this in private settings. You can believe that many universities are going to remain invested in having black students on campus under the new regime. It may be more difficult to accept the A B student from some of the leading high schools in the nation. Nation. And instead it will be easier to accept the valedictorian who attended a very difficult, underserved school. You know, Justice Thomas read about a student in the Wall street journal from Washington, D.C. named Cedric Jennings. This is a long time ago, and this is a student who attended a school called Ballou. And a journalist, Ron Susskind, wrote a piece in the Journal that subsequently became a book about the student's real inspiring desire to achieve significant academic success in the face of real adversity. Justice Thomas reads about this, and he invites Cedric Jennings to come visit him in chambers any old day of the week. Eventually, Jennings accepts the offer, and the journalist accompanied Cedric Jennings to the chambers. Eventually, the topic turns out return to college and where Cedric was going to head in the fall. And Cedric told Justice Thomas that he was headed off to Brown University. And Justice Thomas frowned and shook his head and said, oh, I don't know if I would do that if I were you. There are an awfully lot of smart white kids up there, and if you're not sure who you are, you can get lost up there. And Justice Thomas went on to say, say that he witnessed this happen to some of his black classmates at Holy Cross. And so, you know, he said, if you haven't been around white people a lot, it can be a very difficult environment. So this is a claim about a sort of social mismatch rather than academic mismatch. And again, even if you take the mismatch idea seriously, the concerns of mismatch are going to be heightened rather than diminished. I disagree with Justice Thomas, but I think it's difficult to deny that he has made important contributions to thinking about race in American society over time. So I try to take him seriously. And one of the things that I'm attempting to do in the book is to think about not so much what the Equal Protection clause might prohibit, but instead with the equal Protection clause, clause might require. It seems to me that we've dedicated too much attention to thinking sort of what's forbidden, and instead we would do well to think about what might be required.

[Dahlia Lithwick]

And can you talk for just a moment? Because I think maybe this is the part of your book that's probably hard for liberals to swallow. But I think that your point is the dissents aren't right about everything either, and in fact, fact, supporters of affirmative action, which you are. But I think you would suggest there's real problem with how you get there. Can you just talk briefly about the quibbles you have with the failure of the left to take seriously these arguments?

[Justin Driver]

Yes. For a long time, people have just, as I said earlier, banged their fist on the table and said, well, anti subordination resolves all of these problems. And I. I think that's too tidy an explanation. One of the moves that I make in the book is to try to suggest that even as glimpsed from conservative lenses, the new admissions model is actually worse than the old admissions model. I thought that Justice Jackson and Justice Sotomayor made some powerful points in their opinions, including including that race suffuses American society and that this colorblindness idea is perhaps attractive as an aspiration. But we are not there yet, even close, in American society. So I wish that the dissents had also questioned Justice Harlan's opinion. One of the oddities that runs throughout the opinion is that there's a vigorous fight for the legacy of Justice Harlan's dissenting opinion in Plessy vs Ferguson, the case from 1896 that validated the separate but equal regime. Justice Harlan wrote a dissenting opinion there. And one of the oddities of it, and one of the offensive parts of it, is that it vindicates white supremacy and also talks about the oddity of people of Asian descent being able to ride in rail cars with white people. And so in a case where Asian Americans are the litigants saying that Harvard's admissions model has harmed them, it's beyond odd that the Supreme Court justices, both in the majority and the dissent, are saying, we're with Justice Harlan. People, I think, cite that opinion more often than they read it. One of the arguments that I do make in the book is that conservatives have been railing against affirmative action for so long, and in my view, they've dedicated insufficient attention to contemplating what should replace affirmative action. So conservatives have long said that the problem with race conscious admissions policy is that it inculcates a sense of victimization on the part of racial minorities. Shelby Steele has made this argument. John McWhorter has made this argument. Linda Chavez has made this argument that it's a dangerous thing if you're trying to make contributions to society to portray yourself as a victim. But those concerns, trying to take them seriously, are heightened rather than diminished by the SFF opinion. Under the old admissions model, a black applicant like myself could check the black box and then write an essay about why I wanted to study Proust or Plato or string theory or anything else under the university's wide sun. But because universities are now prohibited from accessing the racial box check data during the admissions process itself, black students are strongly incentivized to write essays that sound in racial discrimination. Chief Justice Roberts's opinion in SFFA versus Harvard expressly says it's perfectly legitimate for applicants to write essays about their individual encounters with racism and obstacles overcome and things of that. That nature. But of course, whereas one can check a racial box at the doctor's office or at the DMV without too much thought, successful college applications essays require multiple rounds of revision and real polishing. And that is going to sort of deepen this sense of victimization that conservatives say is the problem with affirmative action. And it's also going to, exactly as you suggested earlier, going to clash with Chief Justice Roberts's idea that America has made tremendous strides toward racial equality. This is an idea that arose in his opinion for the court in The Shelby county vs. Holder case, which eviscerated a portion of the Voting Rights Act. But now you're going to have black applicants and Brown applicants saying, I had these horrible encounters with racism. And that's going to lead to the idea that racial discrimination not only isn't diminishing, but it may even be increasing in American society. So I really do believe that even by taking conservative argumentation seriously against affirmative action, that SFFA versus Harvard is going to make things worse rather than better.

[Dahlia Lithwick]

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[Dahlia Lithwick]

Let's return now to my conversation with Justin Driver. Justin, I'm going to say something and you're going to tell me if I'm overreading, but is it fair? To summarize the anti subordination argument that's coming from the right and this is Ed Bloom, right? Who is the engineer of so many of these attacks on not just voting rights but affirmative action. This is believe it or not, this is Charlie Kirk's argument. And sometimes we hear, I think, lines of this, even from Justice Thomas. And the argument feels something like, we need to get rid of affirmative action because we have to stop making me a racist. By which I mean that it turns otherwise reasonable people into racists because the existence of affirmative action, certainly in university at first admissions, leads them inexorably to draw the conclusion. And you know, this is lampooned by Larry David, that any successful or prominent doctor, pilot, air traffic controller, Supreme Court justice, anyone who's just living their life as a black person, those people are not there because of their merit. And that if we get rid of affirmative action, then I won't have these bad feelings I'm having and blurt out unattractive things. And it slightly sounds, in the key of Justice Alito's reaction in Obergefell, like, stop making me a bigot, right? If we don't have marriage equality, I won't have to sound like a bigot. Please tell me, am I massively overreading that argument or is that some piece of this?

[Justin Driver]

I think that you are exactly right. It's difficult to overstate the centrality of this argument for opponents of affirmative action. And I think it is deeply unattractive and wrong. And it's one of the most central parts of the book. Let me tell you how Edward Bloom, in the aftermath of MIT's massive decline in black enrollment, went down to 5%. As I said, sort of said, this is cause for celebration, in effect, because the 5% black students who are there can hold their heads high and know that they made it in through the front door rather than the back door. The difficulty with this is that we've seen this movie before and California got rid of affirmative action back in the 1990s. And you can find many black students who are saying that our experience on campus at UC Berkeley was far from idyllic. Indeed, we were not invited to join the study groups on campus campus decades after the end of affirmative action because our classmates believed that we were somehow there in an illegitimate fashion. They say that there were so few black students on campus that it was simply assumed that they were not actually students. That is to say, when their classmates are handing out leaflets on campus that black students are not even handed out a leaflet to students passing by, because the belief has to be that they're not actually students here. So I think it's quite plausible that we are entering the worst of all worlds where there are a tiny number of black students and Doubts about black intellectual competence remain. Let me just say one more thing about this. Justice Thomas has been banging this drum for quite some time now, saying that the problem with affirmative action is that because of its existence, exactly as you say, Dalia, all black people are tarred as undeveloped, deserving. The supposition is that black people made it in through the back door of the admissions world rather than through the front door. And that's a shame, Justice Thomas says, because in the University of Michigan Law School, for example, no one disputes that some black students would have amassed the typical credentials involving GPA and LSAT scores that would have entitled them to a spot at the University of Michigan. And I sort of respond by saying this is exactly the wrong default rule and default assumption. Rather than saying, well, if you're black in this environment, we should just presume that you are, to use Steven Carter's terminology, an affirmative action baby. I think the assumption should be exactly inverted and that we should assume that all sorts of students who are on campus merit their spot on campus. At a minimum, we should say that this is a rebuttable presumption. It can be disproven with sort of rank incompetence, I suppose. But black students should be afforded this. Just as I should say, by the way, legacy admits should be afforded the same grace. The children of the donor class should be afforded the same grace. The students who have made their way onto campus and are active in boutique sports, niche sports like sailing and fencing, I would extend that same grace to them. So I do hope that people will think seriously about this default rule and this assertion, well, if you're black, then it's legitimate for me to think that you made it there solely as a result of affirmative action. And I have to say that Justice Thomas has made this argument in the context of the Texas 10% plan cases involving UT Austin. And he says, well, because of this existence, people should assume that the existence of racial classifications as part of Texas's admissions process means that they were a recipient of affirmative action. But Justice Thomas believes that the Texas 10% plan, that that is a meritorious program. And so why should one assume that a relatively small number of students who were admitted to UT Austin through the use of individual racial classifications were there? So even in cases where a small number of students might believe to be affirmative action admin. For lack of a better term, Justice Thomas says the assumptions should still apply. And that seems quite wrong headed to me. But I would go further and say that in all instances, we should assume that people are there and of course, we could also have a long discussion about the very nature of merit and the incredible discretion that admissions officers are afforded along a host of different metrics. These elite schools have students with perfect GPAs and 1600s coming out of their ears. Going to be lots of different considerations that are made in order to round out a class.

[Dahlia Lithwick]

It's so I have to say, arresting Justin, to hear you talk about affording one another grace in this moment. It seems that affirmative action is, and I think you made this point, it is a topic that is so fraught in no small part because there is this sort of zero sum quality. Right. Your kid gets into Harvard, my kid doesn't. And this ethos of scarcity that was around when we were having that conversation has now been scaled up on steroids. And scarcity seems to be the model for how we think about everyone else who is part of any functioning system right now. But I guess I'd love to loop back to where we started this conversation about the ways in which that which flowed from John Roberts Pen in 2023 has really been put into practice on the ground in a lot of ways. And so in addition to the statistical drops of black students at elite institutions, we've really seen, as you noted, an all out war on government agencies that work to pursue racial justice. We've seen an all out war on diversity policies. We're seeing an administration now asking schools for their admission data, presumably to further police the institutions of committing acts of diversity. And it's really hard to imagine how we do the thing I'm about to ask you, but in this crabbed moment of scarcity and lack of grace and generosity, do you have thoughts about how we could achieve more equitable outcomes both at the institutions we've been talking about of higher learning, but also, as you said, all the other institutions that are under attack. What's your model for how we think about achieving more diversity when it is explicitly, explicitly being attacked from every quarter?

[Justin Driver]

Yeah. One of the things I'm trying to do in the book is to identify concrete steps that universities could take to avoid a shortfall of black students on campus. The decision was wrongheaded, but there's lots of room that's available to universities. And let me give you a few examples. One of the things I talk about is what I call the fall and rise of box checking. One mechanism that would be available to universities would be to ask applicants to check a box as to whether they were born to unwed parents or raised by a single parent or had a close relative who was incarcerated. These and other questions are correlated with race, but are not what Chief Justice Roberts referred to as race qua race, and that should be permissible. Justice Scalia, when he was a law professor, said he had no problem whatsoever with programs that were designed to court the poor and disadvantaged. He said, and he said, yes, those programs may disproportionately favor black students. That's no problem whatsoever. He says it would not be a problem for his vision of the Equal Protection Clause if all of the beneficiaries of such programs were black. The difficulty is treating people differently on the basis of their race, AKA race qua race. So we could have the fall and rise of biological box checking. We could also have a preference for students who attend local schools that are underserved. Many of our finest universities are located very close to schools with really struggling schools with sort of underserved populations. And so you could have, say, the University of Chicago really keep an eye out for students from the state, south side. Columbia University look out for students in its surrounding area. Georgetown look out for students from Anacostia. And there is nothing unconstitutional about that. We also could look out for students from low opportunity areas. Nationally, there's a wonderfully inventive, creative program come up with by Raj Chetty and John Friedman called the Opportunity Atlas that breaks down census tract data, neighborhoods of about 4,000, paying attention to teenage pregnancy and incarceration rates and things of that nature, and comes up with an index of neighborhoods and the challenges that they face. This is something that has become somewhat popular in recent years in legal circles. People saying we should really pay attention to the people who grow up in rough parts of, say, Appalachia, and not only roughly rough parts of sort of, say, I don't know, Anacostia. My proposal would say that's a great idea. Of course we want people from modest backgrounds at our elite universities. And I would, however, have a tweak and say that Harvard, say, should set aside 10% of its slots from low opportunity areas. But within that 10%, 80% of the students who should come from urban areas and 20% should come from rural areas. I haven't just sort of pulled those numbers out of my hat. That's what the Census Bureau tells me is the breakdown of the United States. Any percent of Americans live in urban areas and 20% live in rural areas. If we were to go Dalia with simply sort of class, not race, as some people have proposed, the dynamic has been that we would have lots of white students for from relatively modest circumstances and very few black students from relatively modest circumstances. Princeton University just unveiled its numbers for the class of 2029, and it said, commendably, it has more poor students, more students who are on Pell Grants than ever in its history. But it's also true that it has fewer black students than it's had in decades. So this idea that if we simply pay attention to class on its own, that it's going to lead to more students on campus, I think that's erroneous. The last idea that I'll say, and perhaps the most provocative, is that students could contemplate implementing preferences for slavery's descendants. Many universities, including my own, have issued extensive reports examining their own involvement with the peculiar institution. Georgetown University has implemented a particular type of preference for the descendants of the the enslaved, but not enough of them have. And ironically, originalism opens the door to preferences for the descendants of the enslaved. You know, there are black people who would check the box for saying, yes, my ancestors were enslaved, but there are plenty of black people in the United States today who would not check that box. People who are relatively recent immigrants from, you know, lots of nations in Africa. And so if there are black people in either side of the line, seems to me that that's not race qua race. And especially these institutions that were involved in slavery in intimate ways, they might seriously think about adopting preferences for the descendants of the enslaved.

[Dahlia Lithwick]

Justin, you have a section of the book that is sort of, I think, formally about John Roberts and the way he does, but it's also, I think, a meditation on what a court does and what a justice does when they are behaving respectively like a court and a justice. And you pretty, I think, brutally deploy some of Robert's own sort of cardinal rules of how to do this correctly against him. You're also, I just want to note, very, very adamant, at least in the book, that you absolutely reject the proposition that you can nullify SFF if you don't like it. If you're a school administrator, you can't just ignore it in much the same way that you couldn't just ignore Brown v. Board. But I would love to hear your best answer. And I know you served on the Presidential commission on the Supreme Court when President Biden convened that group. What is your best answer to this question? You and I are speaking on a week where, again, on the shadow docket, we're seeing Humphrey's executive, you know, the court taking a brickbat to precedent, not explaining, telling lower courts not to rely on precedent anymore. What Is your best answer to the question, what are we meant to do with a court that, according to your own sort of analysis, simply not behaving like a court when it comes to these foundational questions of precedent, of minimalism, of human humility, what are you telling people?

[Justin Driver]

Let me begin where you began, which is I want to make it very clear that I am not interested in attempting to defy the Supreme Court in any way, shape or form. There are some people who have written in this space that have said, well, universities should just continue doing whatever they were doing before and forget the Supreme Court of the United States. It seems to me that the rule of law is a fragile thing in American society. Its fragility has never been more apparent to me in my lifetime than when you and I are speaking right now. And calls for defiance are deeply misplaced and wrongheaded. We've seen actions in the United States over time that have taken that route, and I want no part of that. I do think that I would encourage Chief Justice Roberts to go back and read his really remarkable interview that he granted not long after ascending to the Supreme Court of the United States. He really did say that it's important for the Court to think about itself as an institution and to move incrementally and slowly and to stand by precedent rather than lurching about with the change in personnel. And he actually held up his old boss, then Associate Justice Rehnquist, who would eventually ascend to the Chief Justiceship. When Justice Rehnquist joined the Court, he detested the Miranda decision with a white hot passion over time. Improbably, Chief Justice Rehnquist eventually upheld Miranda in a case called Dickerson in 2000, when many people thought that Miranda was going to be overturned. And Chief Justice Roberts says that is commendable. Justices are not law professors who are just dedicated to doing their own project. Instead, they need to think about this entity as an institution. And so it should be very leery about overturning decisions. But here we are where the Supreme Court overturned the Bakke decision, which made it almost a half century, the Roe vs. Wade decision, which also made it about a half century. So the Supreme Court really is ripping up and destroying people's settled expectations in an incredibly hasty fashion. Nobody believes that the Supreme Court should never overturn a precedent. But it does seem to me that the race Roberts Court is moving at breakneck speed and that it is imperiling the legitimacy of the institution that Chief Justice Roberts loves and leads.

[Dahlia Lithwick]

You think about history really carefully and critically. It's always worth tacking onto what you just said, Justin, a reminder that the country has has been through this and institutions can be resilient. And also, as we always say on the show, information is power and history is powerful information. So I really want to thank you for reminding us to look back in order to look forward. And I really want to kind of commend your new book to our listeners, the Fall of Affirmative Action Race, the Supreme Court and the Future of Higher Education. And as a way of thinking about something in a manner that is both extremely fair, Justin, and full of grace to use your language, but also I think, to be really prepared for what might come next. Justin Driver is the Robert R. Slaughter professor of Law at Yale Law School and an expert in the field of constitutional law. Justin, thank you so very, very much for your time today and we look forward to to having you back. Thank you.

[Justin Driver]

I enjoy the conversation a great deal. Thanks so much for having me, Dalia.

[Dahlia Lithwick]

And that is all for this episode. Thank you so much for listening and thank you so very much for all of your letters and questions. Keep them coming. We are reachable by [e-mail] you can always find [e-mail] Amicus Podcast. You can also leave a comment if want you listening on Spotify or YouTube or you can rate us and review us on Apple Podcasts. On today's Amicus plus bonus episode, Mark Joseph Stern and I are going to discuss the next big precedent in the Supreme Court cites, plus more about the Justice Department weaponization beat. You can subscribe to Slate plus directly from the Amicus show pages on Apple Podcasts and on Spotify. Or you can visit slate.com amicusplus to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there. The shutdown clock is ticking again and Trump is threatening mass layoffs across the federal government if Republicans don't get their way. But at least one Democrat says this is blackmail and it's probably illegal. What Next Host Host Mary Harris talks to Senator Chris Van Hollen about his party's next move, exclusively on what Next. Plus, Sara Burningham is Amicus senior producer. Our producer is Patrick Fort. Hilary Fry is Slate's editor in chief. Susan Matthews is executive editor. Mia Lobel is executive producer of Slate Podcasts and Ben Richmond is our senior director of operations. We will be back with another episode of Amicus next week.

[Dana]

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[Josh Levine]

Hi, I'm Josh Levine. My podcast the Queen tells the story of Linda Taylor. She was a con artist, a kidnapper, and maybe even a brain murderer. She was also given the title the Welfare Queen and her story was used by Ronald Reagan to justify slashing aid to the poor. Now it's time to hear her real story. Over the course of four episodes, you'll find out what was done to Linda Taylor, what she did to others, and what was done in her name.

[Justin Driver]

The great lesson of this for me is that people will come to their own conclusions is based on what their prejudices are.

[Josh Levine]

Subscribe to the Queen on Apple Podcasts or wherever you're listening right now.