The Blindness of the Supreme Court's "Colorblindness"

I needed to be in the room. I wanted to witness the next chapter in a story that mattered to me, one that I had even been a part of. And as a historian, I wanted to be there as it happened—I had to see and hear firsthand what I once thought was unimaginable.

Affirmative action has been implemented in its various forms for well over half a century, for 75 percent of my existence, for nearly 40 percent of the years since the Emancipation Proclamation. The policy has changed the human landscape of our country, and especially that of higher education, where I have spent most of my life. But now it was being challenged before a Supreme Court that every pundit predicted would overturn it. In spite of two lower-court decisions affirming that Harvard’s admissions policies in support of student diversity were not discriminatory and were consistent with the established principles of Grutter v. Bollinger (2003) and University of California v. Bakke (1978), an organization called Students for Fair Admissions (SFFA) was petitioning to have these precedents overturned and affirmative action prohibited. The case, or really two cases—SFFA v. President and Fellows of Harvard College and SFFA v. University of North Carolina at Chapel Hill—were assuming their place in the constellation of Supreme Court decisions that have shaped our nation’s long and troubled history of slavery and persisting racial injustice, decisions that have sometimes advanced but more often impeded or even reversed our progress. When the case against Harvard was originally filed, in 2014, I was the president in its title. I testified in the initial district-court trial. Now I was anxious to be there for the Supreme Court oral arguments that represented its culmination.

I wonder if lawyers who appear regularly before the Court, or the staff and security personnel who work there every day, or the justices themselves, who usually serve for decades, ever lose the sense of awe the building was designed to instill. To enter, you need to climb two sets of marble stairs, elevating you well above the ordinariness of the street below. Inside, a Great Hall lined with 36 marble columns leads to the courtroom. Heavy red-velvet drapes shield the entry. I thought of a theater as the curtains opened to reveal the bench, high above us, directly ahead.

The Supreme Court building has existed only since 1935, but its sculptures and friezes and portraits, its classical columns and pediments, are intended to make it appear timeless. The literal weightiness of its marble and stone reinforces the visitor’s appreciation of consequence: of what has happened, and will happen, in this chamber. The courtroom holds more than 400 observers with a surprising intimacy. We sat on what seemed to me the equivalent of pews, our silence enforced by Court officials even before the justices entered. The building and its rituals demand deference.

But awe was not the only emotion the building stirred. Walking through the Great Hall to the courtroom, I had passed a bust of Chief Justice Roger Taney, whose 1857 Dred Scott opinion declared that Black people could not be citizens and had “no rights which the white man was bound to respect.” It is impossible to forget how imperfect, particularly in relation to race, our judicial system has often proved.

We rose to our feet as the nine justices entered and took their seats on the dais. Four women, five men, two Black Americans, one Hispanic American—the Court itself is the product of commitments to diversity made by presidents from George H. W. Bush to Joe Biden. At the invitation of the chief justice, the petitioner for Students for Fair Admissions, Patrick Strawbridge, began his argument. The business of the day was immediately clear. “Racial classifications are wrong,” Strawbridge began. Grutter, the 2003 case, is “grievously wrong … This court should overrule” it. Affirmative action was in the crosshairs.