How the Supreme Court Gave Cover to Stephen Miller’s Racist Agenda

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The Supreme Court’s decision in 2023’s Students for Fair Admissions v. Harvard didn’t just signal the end of affirmative action in higher education in the United States; it also launched a thousand lethal torpedoes at diversity and equity programs across the country. This case turbocharged a whole new way of thinking about colorblindness and the Constitution, and its ripple effects have been felt beyond education—in the C-suite, in the military, and more. And the decision has also provided a template for attacking pluralistic democracy—one that Pete Hegseth, Stephen Miller, and Pam Bondi have all been using. On this week’s Amicus podcast, Dahlia Lithwick spoke with Yale Law School’s Justin Driver, author of The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education^[2]. Part of their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: I wonder if you have a theory of why affirmative action in higher education—what you describe as a boutique social policy—came to be the North Star of how we think about justice in the public imagination?

Justin Driver: This is among the most incendiary topics in all of American society. There are a few reasons for that. One, 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.

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 had upheld affirmative action, before SFFA v. Harvard two years ago, through gritted teeth, with a lot of ambivalence surrounding the topic. I don’t think that ambivalence is warranted. As a result of affirmative action, the Black professional class increased dramatically. The number of attorneys, physicians, engineers, and professors went from being relatively foreign to familiar. 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.

The Donald Trump–constructed majority of the Supreme Court struck down affirmative action because, per John Roberts, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. Sketch out for me what has happened nationally, in the very brief wake of SFFA in terms of minority admissions in higher education, because this is a case that has actually had measurable effects extremely rapidly.

The reason I wrote this book is that I feared that this Supreme Court
decision would lead Black enrollment at many of our nation’s top universities to plummet. And I’m sorry to say that my prediction has been borne out. In the aftermath of SFFA, Black enrollment at MIT in the first-year class went from 13 percent to 5 percent^[3]. Amherst went from 11 percent to 3 percent^[4]. Several Ivy League colleges, including Brown, Columbia, Cornell, and Princeton, suffered massive declines in Black enrollment. And we’ve seen these dynamics unfold at other schools. My alma mater Harvard Law School, in the immediate class after SFFA, 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 U.S. society.

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. Trump obviously rose to political power in part by denying that Barack Obama was eligible for the presidency. In 2016 Trump said^[5] that a judge who was born in Indiana could not be fair in assessing his case because he was a “Mexican.” And of course Trump 2.0 makes Trump 1.0 seem quite mild in comparison, given that 2.0 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 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 decision upholding^[6] Immigration and Customs Enforcement’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 a Mexican or be speaking accented English and 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 this larger context.

You think back about SFFA, and it almost feels quaint, right? I mean, it was an earthquake in higher education, for sure, but compared to what we’re seeing now and rooted back in the kind of colorblind reasoning in SFFA, everything is absolutely seismic. And so that which starts as a John Roberts thought experiment unfolds in cascading ways, in no small part because it’s been blessed by the Supreme Court. It was limited to education but is suddenly now being leached into the C-suite, into an all-out attack on affirmative action in military academies and in the military. We’re about to go into a term where what’s left of the Voting Rights Act is gonna be questioned on the basis of this colorblindness theory.

There is a way in which the Roberts court is almost power-washing these ideas, and then Stephen Miller and Pete Hegseth and Donald Trump and their friends take it to the furthest limits. The court is where these ideas are hatched, and it is legitimized in ways that allow Miller to go all out, 110 percent, every time.

The Supreme Court’s decision, in my view, was catastrophically wrong, erroneous. It also did not sweep nearly as far as the Trump administration is asserting that it swept. The administration is attempting to brandish SFFA v. 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. Too many Black and brown students at fancy schools is not among those problems.

Let me give you an example of how the administration is brandishing the decision. It has issued guidance saying that the decision, for example, prohibits universities from abandoning standardized testing if they do so with an eye toward increasing racial diversity on campus. But SFFA v. Harvard says nothing of the kind. In Roberts’ opinion, he speaks about prohibiting universities from considering what he calls race qua race, and that, in my view, leaves institutions with a considerable amount of latitude to adopt and implement policies that would maintain and allow racial diversity to rebound.

Let me just give you one other concrete example of what the Trump administration is up to here. It has been assaulting higher education generally. The administration has entered into what are more or less consent decrees with Columbia and Brown and extracted cash from these universities to the tune of millions of dollars. And it has also secured the agreement^[8] that Brown and Columbia would hand over admissions data broken down by race for 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 wave these numbers around—say, 5 percent Black at Brown or Columbia—and claim that anybody who has Black enrollment that’s north of 5 percent 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 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 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. 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 law.

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