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

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.

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.”

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.”

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

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.

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.