This week the Supreme Court hears a challenge to affirmative action—and will likely overrule more than four decades of precedents on college admissions.
When Supreme Court Justices want to justify overruling long-standing precedent, the paradigm often cited is Brown v. Board of Education, from 1954, which, in declaring segregation unconstitutional, overruled Plessy v. Ferguson and its “separate but equal” doctrine, from a half century earlier. During the last term, Justice Samuel Alito offended many people when he compared the Court’s overruling of Roe v. Wade to Brown’s overruling of Plessy.
S.F.F.A. alleged in the 2014 suits that race-conscious affirmative action violates the equal-protection clause of the Fourteenth Amendment and also Title VI, the statute prohibiting any “program or activity” that receives federal funds from discriminating “on the ground of race, color, or national origin.
For decades, conservative Justices have read Brown as standing not for an anti-subordination idea but, rather, for a color-blindness principle that disapproves of determinations that consider race. That reading claims to find support in Justice John Marshall Harlan’s famous dissent in Plessy, in which he stated, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.
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