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The groundbreaking ruling by the United States Supreme Court in the case of Students for Fair Admissions, Inc. v. President and Fellows of Harvard College has the potential to be a tectonic shift in American jurisprudence, comparable to a Third Founding of our Nation. Chief Justice Roberts issued this ruling on June 29, 2023, stating that the admissions programs at Harvard College and the University of North Carolina violated the equal protection clause of the 14th Amendment. The decision sparked significant debate and reflection on affirmative action in college admissions. Through a 6-3 vote and a range of concurring and dissenting opinions from Justices Thomas, Gorsuch, Kavanaugh, Sotomayor, and Kagan, the ruling raised concerns about the impact on diversity and inclusion efforts in higher education. By shedding light on areas where liberty and individual rights are overshadowed by diversity, equity, and inclusion (DEI) discriminatory interests in both public and corporate governance, it offered the potential for a renaissance in the pursuit of equality, justice, and individual rights.

As mentioned earlier, the ruling on affirmative action has the potential to be a turning point in American jurisprudence, akin to a Third Founding of the Nation. The First Founding is often referred to as the establishment of the United States as an independent nation through the American Revolution involving the drafting and ratification of the Constitution in 1787. This period laid the groundwork for the country’s political and legal systems. The Second Founding is commonly associated with the Reconstruction Era following the Civil War, which aimed to reorganize the Southern states, readmit them into the Union, and define the means of integration between whites and blacks.

I characterize the ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College as a possible Third Founding because of its potential to significantly shape American jurisprudence. This ruling will likely influence the future interpretation of the Constitution, impact legal decisions, and have broad-ranging consequences in terms of promoting equality, individual rights, and redefining the role of the judiciary.

The founding document that informed the Constitution was the Declaration of Independence, which emphasized the principle that all individuals are created equal and possessed equal rights to life, liberty, and the pursuit of happiness. This principle served as the basis for self-government and the rule of law.

Precedence harkened back to a similar instance in Supreme Court history known as the Lochner Era (1890-1937) where Lochner had become shorthand for a period in which judges invalidated labor laws based on their view that those laws prevented employers and workers from striking the best deal they could with each other. In Lochner v. New York, five justices found that a labor law that limited a total number of work hours per day could not be justified under police power, stating, “It was impossible for us to shut our eyes to the fact that many laws of this character, while passed under what was claimed to be the police power for the purpose of protecting the public health or welfare, were, in reality, passed for other motives.”

In the Lochner case, the Court held that state laws ostensibly enacted for police-power purposes intended to redistribute wealth or help a certain group at the expense of others. Having determined that the labor law had no relation to public health, the Court concluded that “the limit of the police power had been reached and passed in this case,” and it struck down the act as a violation of the Fourteenth Amendment’s due process clause.

In a similar fashion, the Court’s recent affirmative action ruling reflected a moment where fifty years of jurisprudence were ignored in favor of a return to the Constitution. Once such case was Gutter v. Bellinger where three white applicants were rejected admission into the University of Michigan based on the color of their skin. In this case, the Supreme Court upheld the discriminatory admission policies of the school. In this case, Clarence Thomas dissented, writing, “Racial discrimination is not a permissible solution. That can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause.”

The 2023 ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College corrected the decades of precedent that dismissed the constitutional demand for equality of opportunity (vice equality of outcome), rendering what the founders would have considered misguided and prejudicial lawmaking. Subsequently, the Supreme Court signaled a rejection of Progressive Era thought, marking a notable shift toward a more traditional interpretation of the Constitution.

The majority’s position was rooted in a commitment to history, tradition, and the rule of law. The ruling argued that affirmative action constituted race-based discrimination, which was incompatible with the core principles of equality and individual rights enshrined in the Constitution. The Court’s opinion stated that a student “had to be treated based on his or her experiences as an individual—not on the basis of race. Many universities had, for too long, done just the opposite. And in doing so, they had concluded, wrongly, that the touchstone of an individual’s identity was not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history did not tolerate that choice.”

As a result, the Court ruled that the admissions programs of Harvard and UNC were inconsistent with the guarantees of the Equal Protection Clause, quoting Justice Harlan’s dissent in the detrimental Plessy v. Ferguson case: “[I]n view of the Constitution, in the eye of the law, there was in this country no superior, dominant, ruling class of citizens. There was no caste here. Our Constitution was colorblind, and neither knew nor tolerated classes among citizens.”

In his concurrence, Justice Clarence Thomas stated, “The great failure of this country was slavery and its progeny. And, the tragic failure of this Court was its misinterpretation of the Reconstruction Amendments, as Justice Harlan predicted in Plessy.” He emphasized the need to uphold the colorblind Constitution and the nation’s ideal of equality, expressing enduring hope that the country would live up to the principles enunciated in the Declaration of Independence and the Constitution.

Critics of the ruling argued that it undermined efforts to address systemic racism and societal inequalities. Post-modern leftist Justices, Sonia Sotomayor and Ketanji Brown Jackson, indicated in their respective dissents, little appetite for the rule of law, making it increasingly obvious that their activism is increasingly about dictating outcomes—picking winners and losers. Together they contended that certain forms of discrimination were necessary to rectify past injustices and provide equal opportunities for historically marginalized groups. They perceived the majority’s decision as a regression and a threat to the progress made in promoting diversity and inclusivity, dictated by unelected elites.

Contrarily, the Court signaled an end to the decision-making class, returning the authority back to the people through their elected representatives and demonstrating its intent to safeguard the institution itself, upholding its role as one (not two) of the three branches of government entrusted with upholding the Constitution. Proponents of the ruling viewed it as a restoration of constitutional principles with far-reaching implications to include facilitating a return to colorblind justice and equality in the Nation.

For reasons stated above, the Supreme Court’s ruling on affirmative action had profound implications that may be regarded as a pivotal moment in American history, analogous to a Third Founding of the Nation. It continues to shape the ongoing discourse surrounding equality, justice, and the role of the judiciary. As Chief Justice Roberts, in the Supreme Court’s 2007 Parents Involved in Community Schools v. Seattle School District No. 1 decision, stated: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

In the captivating documentary, “Created Equal,” Justice Clarence Thomas narrates an extraordinary odyssey, one that took him from the adversities of a segregated era in the slums of Boston to the hallowed halls of the United States Supreme Court. With unwavering conviction, Thomas challenges the notion of selective discrimination, asking, “Show me in the Constitution where you get a right to separate citizens based on race. I think what we’ve become comfortable with is thinking that there is some good discrimination and some bad discrimination. Well, who gets to determine that? And if you look at the briefs in the race cases, the segregationists – the people who thought you should have a separate system – they said it was good for both races. They thought it was good discrimination.”

My take: We must transcend the focus on immutable attributes and embrace the radiant human spark that shines beneath the surface of the skin. There must be no exception or exemption found in our Constitution or the American creed that all are created equal. As Martin Luther King Jr. demanded over half a century ago, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.” May we not lose sight of such a dream.

To read the full decision, visit: Students for Fair Admissions, Inc. v. President and Fellows of Harvard College


Author: Richard Turner

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