Opinion In Harvard admissions case, will justices cherry-pick their history?

If you thought the Supreme Court term that just concluded was a disaster, brace yourself for the next one. The conservative justices will shift their focus to another long-standing goal: outlawing affirmative action in higher education. The outcome in two cases before the court, challenging admissions programs at Harvard University and the University of North Carolina, appears even more assured than was the overturning of Roe v. Wade. The conservative justices, who have long bristled at anything that smacks of a racial preference, seem poised to overturn decades of precedent letting colleges and universities consider racial diversity as a factor when admitting students. But a spate of briefs defending Harvard and UNC offer compelling arguments that should give the conservative majority pause. In their recent rulings expanding gun rights and eliminating constitutional protection for abortion, the justices emphasized the importance of history — looking to the laws and practices in place at the time the relevant constitutional provision was enacted to determine its original meaning. “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Justice Samuel A. Alito Jr. wrote in Dobbs v. Jackson Women’s Health Organization, which overturned Roe. “Only if a firearm regulation is consistent with this Nation’s historical tradition” can it be justified under the Second Amendment, Justice Clarence Thomas wrote in striking down a New York state law limiting concealed carry permits. If the conservative majority meant what it said in those cases, the newly […]

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