[ The Supreme Court ruled race-based college admissions are
unlawful, ending affirmative action programs at colleges. In her
dissent, Supreme Court justice Ketanji Brown Jackson pulled no punches
calling the ruling “let-them-eat-cake obliviousness.”]
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SUPREME COURT JUSTICE KETANJI BROWN JACKSON’S SCATHING DISSENT TO
‘LET-THEM-EAT-CAKE OBLIVIOUSNESS’ AT END OF AFFIRMATIVE ACTION  
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Ketanji Brown Jackson
June 29, 2023
Yahoo! Entertainment
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_ The Supreme Court ruled race-based college admissions are unlawful,
ending affirmative action programs at colleges. In her dissent,
Supreme Court justice Ketanji Brown Jackson pulled no punches calling
the ruling “let-them-eat-cake obliviousness.” _

Justice Ketanji Brown Jackson, Amsterdam News

 

The vote was 6 to 3, with the Supreme Court’s liberal members voting
against the decision, and Jackson’s lengthy dissent quickly caught
traction on social media.

“With let-them-eat-cake obliviousness, today, the majority pulls the
ripcord and announces ‘colorblindness for all’ by legal fiat,”
the dissent reads in part. “But deeming race irrelevant in law does
not make it so in life. And having so detached itself from this
country’s actual past and present experiences, the Court has now
been lured into interfering with the crucial work that UNC and other
institutions of higher learning are doing to solve America’s
real-world problems.”

Here is her full dissent (reposted from decisions of the October 2022
term of the Supreme Court
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Gulf-sized race-based gaps exist with respect to the health, wealth,
and well-being of American citizens. They were created in the distant
past, but have indisputably been passed down to the present day
through the generations. Every moment these gaps persist is a moment
in which this great country falls short of actualizing one of its
foundational principles—the “self-evident” truth that all of us
are created equal. Yet, today, the Court determines that holistic
admissions programs like the one that the University of North Carolina
(UNC) has operated, consistent with _Grutter v. Bollinger_, 539 U. S.
306 (2003), are a problem with respect to achievement of that
aspiration, rather than a viable solution (as has long been evident to
historians, sociologists, and policymakers alike).

Justice Sotomayor has persuasively established that nothing in the
Constitution or Title VI prohibits institutions from taking race into
account to ensure the racial diversity of admits in higher education.
I join her opinion without qualification. I write separately to
expound upon the universal benefits of considering race in this
context, in response to a suggestion that has permeated this legal
action from the start. Students for Fair Admissions (SFFA) has
maintained, both subtly and overtly, that it is _unfair_ for a
college’s admissions process to consider race as one factor in a
holistic review of its applicants.

This contention blinks both history and reality in ways too numerous
to count. But the response is simple: Our country has never been
colorblind. Given the lengthy history of state-sponsored race-based
preferences in America, to say that anyone is now victimized if a
college considers whether that legacy of discrimination has unequally
advantaged its applicants fails to acknowledge the well-documented
“intergenerational transmission of inequality” that still plagues
our citizenry.

It is that inequality that admissions programs such as UNC’s help to
address, to the benefit of us all. Because the majority’s judgment
stunts that progress without any basis in law, history, logic, or
justice, I dissent.

I
A

Imagine two college applicants from North Carolina, John and James.
Both trace their family’s North Carolina roots to the year of
UNC’s founding in 1789. Both love their State and want great things
for its people. Both want to honor their family’s legacy by
attending the State’s flagship educational institution. John,
however, would be the seventh generation to graduate from UNC. He is
White. James would be the first; he is Black. Does the race of these
applicants properly play a role in UNC’s holistic merits-based
admissions process?

To answer that question, “a page of history is worth a volume of
logic.” _New York Trust Co. v. Eisner_, 256 U. S. 345, 349 (1921).
Many chapters of America’s history appear necessary, given the
opinions that my colleagues in the majority have issued in this case.

Justice Thurgood Marshall recounted the genesis:

“Three hundred and fifty years ago, the Negro was dragged to this
country in chains to be sold into slavery. Uprooted from his homeland
and thrust into bondage for forced labor, the slave was deprived of
all legal rights. It was unlawful to teach him to read; he could be
sold away from his family and friends at the whim of his master; and
killing or maiming him was not a crime. The system of slavery
brutalized and dehumanized both master and slave.” Regents of Univ.
of Cal. v. Bakke, 438 U. S. 265, 387–388 (1978).

Slavery should have been (and was to many) self-evidently dissonant
with our avowed founding principles. When the time came to resolve
that dissonance, eleven States chose slavery. With the Union’s
survival at stake, Frederick Douglass noted, Black Americans in the
South “were almost the only reliable friends the nation had,” and
“but for their help . . . the Rebels might have succeeded in
breaking up the Union.” After the war, Senator John Sherman defended
the proposed Fourteenth Amendment in a manner that encapsulated our
Reconstruction Framers’ highest sentiments: “We are bound by every
obligation, by [Black Americans’] service on the battlefield, by
their heroes who are buried in our cause, by their patriotism in the
hours that tried our country, we are bound to protect them and all
their natural rights.”

To uphold that promise, the Framers repudiated this Court’s holding
in _Dred Scott v. Sandford_, 19 How. 393 (1857), by crafting
Reconstruction Amendments (and associated legislation) that
transformed our Constitution and society. Even after this Second
Founding—when the need to right historical wrongs should have been
clear beyond cavil—opponents insisted that vindicating equality in
this manner slighted White Americans. So, when the Reconstruction
Congress passed a bill to secure all citizens “the same [civil]
right[s]” as “enjoyed by white citizens,” 14 Stat. 27, President
Andrew Johnson vetoed it because it “discriminat[ed] . . . in favor
of the negro.”

That attitude, and the Nation’s associated retreat from
Reconstruction, made prophesy out of Congressman Thaddeus Stevens’s
fear that “those States will all . . . keep up this discrimination,
and crush to death the hated freedmen.” And this Court facilitated
that retrenchment. Not just in _Plessy v. Ferguson_, 163 U. S. 537
(1896), but “in almost every instance, the Court chose to restrict
the scope of the second founding.” Thus, thirteen years
pre-_Plessy_, in the _Civil Rights Cases_, 109 U. S. 3 (1883), our
predecessors on this Court invalidated Congress’s attempt to enforce
the Reconstruction Amendments via the Civil Rights Act of 1875,
lecturing that “there must be some stage . . . when [Black
Americans] tak[e] the rank of a mere citizen, and ceas[e] to be the
special favorite of the laws.” _Id_., at 25. But Justice Harlan
knew better. He responded: “What the nation, through Congress, has
sought to accomplish in reference to [Black people] is—what had
already been done in every State of the Union for the white race—to
secure and protect rights belonging to them as freemen and citizens;
nothing more.” _Id._, at 61 (dissenting opinion).

Justice Harlan dissented alone. And the betrayal that this Court
enabled had concrete effects. Enslaved Black people had built great
wealth, but only for enslavers. No surprise, then, that freedmen leapt
at the chance to control their own labor and to build their own
financial security. Still, White southerners often “simply refused
to sell land to blacks,” even when not selling was economically
foolish. To bolster private exclusion, States sometimes passed laws
forbidding such sales. The inability to build wealth through that most
American of means forced Black people into sharecropping roles, where
they somehow always tended to find themselves in debt to the landowner
when the growing season closed, with no hope of recourse against the
ever-present cooking of the books.

Sharecropping is but one example of race-linked obstacles that the law
(and private parties) laid down to hinder the progress and prosperity
of Black people. Vagrancy laws criminalized free Black men who failed
to work for White landlords. Many States barred freedmen from hunting
or fishing to ensure that they could not live without entering _de
facto_ re-enslavement as sharecroppers. A cornucopia of laws (e.g.,
banning hitchhiking, prohibiting encouraging a laborer to leave his
employer, and penalizing those who prompted Black southerners to
migrate northward) ensured that Black people could not freely seek
better lives elsewhere. And when statutes did not ensure compliance,
state-sanctioned (and private) violence did.

Thus emerged Jim Crow—a system that was, as much as anything else, a
comprehensive scheme of economic exploitation to replace the Black
Codes, which themselves had replaced slavery’s form of comprehensive
economic exploitation. Meanwhile, as Jim Crow ossified, the Federal
Government was “giving away land” on the western frontier, and
with it “the opportunity for upward mobility and a more secure
future,” over the 1862 Homestead Act’s three-quarter-century
tenure. Black people were exceedingly unlikely to be allowed to share
in those benefits, which by one calculation may have advantaged
approximately 46 million Americans living today.

Despite these barriers, Black people persisted. Their so-called Great
Migration northward accelerated during and after the First World War.
Like clockwork, American cities responded with racially exclusionary
zoning (and similar policies). As a result, Black migrants had to pay
disproportionately high prices for disproportionately subpar housing.
Nor did migration make it more likely for Black people to access home
ownership, as banks would not lend to Black people, and in the rare
cases banks would fund home loans, exorbitant interest rates were
charged. With Black people still locked out of the Homestead Act
giveaway, it is no surprise that, when the Great Depression arrived,
race-based wealth, health, and opportunity gaps were the norm.

Federal and State Governments’ selective intervention further
exacerbated the disparities. Consider, for example, the federal Home
Owners’ Loan Corporation (HOLC), created in 1933. HOLC purchased
mortgages threatened with foreclosure and issued new, amortized
mortgages in their place. Not only did this mean that recipients of
these mortgages could gain equity while paying off the loan,
successful full payment would make the recipient a homeowner.
Ostensibly to identify (and avoid) the riskiest recipients, the HOLC
“created color-coded maps of every metropolitan area in the
nation.” Green meant safe; red meant risky. And, regardless of
class, every neighborhood with Black people earned the red
designation.

Similarly, consider the Federal Housing Administration (FHA), created
in 1934, which insured highly desirable bank mortgages. Eligibility
for this insurance required an FHA appraisal of the property to ensure
a low default risk. But, nationwide, it was FHA’s established policy
to provide “no guarantees for mortgages to African Americans, or to
whites who might lease to African Americans,” irrespective of
creditworthiness. No surprise, then, that “[b]etween 1934 and 1968,
98 percent of FHA loans went to white Americans,” with whole cities
(ones that had a disproportionately large number of Black people due
to housing segregation) sometimes being deemed ineligible for FHA
intervention on racial grounds. The Veterans Administration operated
similarly.

One more example: the Federal Home Loan Bank Board “chartered,
insured, and regulated savings and loan associations from the early
years of the New Deal.” But it did “not oppose the denial of
mortgages to African Americans until 1961” (and even then opposed
discrimination ineffectively).

The upshot of all this is that, due to government policy choices,
“[i]n the suburban-shaping years between 1930 and 1960, fewer than
one percent of all mortgages in the nation were issued to African
Americans.” Thus, based on their race, Black people were “[l]ocked
out of the greatest mass-based opportunity for wealth accumulation in
American history.”

For present purposes, it is significant that, in so excluding Black
people, government policies affirmatively operated—one could say,
affirmatively acted—to dole out preferences to those who, if nothing
else, were not Black. Those past preferences carried forward and are
reinforced today by (among other things) the benefits that flow to
homeowners and to the holders of other forms of capital that are hard
to obtain unless one already has assets.

This discussion of how the existing gaps were formed is merely
illustrative, not exhaustive. I will pass over Congress’s repeated
crafting of family-, worker-, and retiree-protective legislation to
channel benefits to White people, thereby excluding Black Americans
from what was otherwise “a revolution in the status of most working
Americans.” I will also skip how the G. I. Bill’s “creation of .
. . middle-class America” (by giving $95 billion to veterans and
their families between 1944 and 1971) was “deliberately designed to
accommodate Jim Crow.” So, too, will I bypass how Black people were
prevented from partaking in the consumer credit market—a market that
helped White people who could access it build and protect wealth. Nor
will time and space permit my elaborating how local officials’
racial hostility meant that even those benefits that Black people
could formally obtain were unequally distributed along racial lines.
And I could not possibly discuss every way in which, in light of this
history, facially race-blind policies still work race-based harms
today (e.g., racially disparate tax-system treatment; the
disproportionate location of toxic-waste facilities in Black
communities; or the deliberate action of governments at all levels in
designing interstate highways to bisect and segregate Black urban
communities).

The point is this: Given our history, the origin of persistent
race-linked gaps should be no mystery. It has never been a deficiency
of Black Americans’ desire or ability to, in Frederick Douglass’s
words, “stand on [their] own legs.” Rather, it was always simply
what Justice Harlan recognized 140 years ago—the persistent and
pernicious denial of “what had already been done in every State of
the Union for the white race.” _Civil Rights Cases_, 109 U. S., at
61 (dissenting opinion).

B

History speaks. In some form, it can be heard forever. The race-based
gaps that first developed centuries ago are echoes from the past that
still exist today. By all accounts, they are still stark.

Start with wealth and income. Just four years ago, in 2019, Black
families’ median wealth was approximately $24,000. For White
families, that number was approximately eight times as much (about
$188,000). These wealth disparities “exis[t] at every income and
education level,” so, “[o]n average, white families with college
degrees have over $300,000 more wealth than black families with
college degrees.” This disparity has also accelerated over
time—from a roughly $40,000 gap between White and Black household
median net worth in 1993 to a roughly $135,000 gap in 2019. Median
income numbers from 2019 tell the same story: $76,057 for White
households, $98,174 for Asian households, $56,113 for Latino
households, and $45,438 for Black households.

These financial gaps are unsurprising in light of the link between
home ownership and wealth. Today, as was true 50 years ago, Black home
ownership trails White home ownership by approximately 25 percentage
points. Moreover, Black Americans’ homes (relative to White
Americans’) constitute a greater percentage of household wealth, yet
tend to be worth less, are subject to higher effective property taxes,
and generally lost more value in the Great Recession.

From those markers of social and financial unwellness flow others. In
most state flagship higher educational institutions, the percentage of
Black undergraduates is lower than the percentage of Black high school
graduates in that State. Black Americans in their late twenties are
about half as likely as their White counterparts to have college
degrees. And because lower family income and wealth force students to
borrow more, those Black students who do graduate college find
themselves four years out with about $50,000 in student debt—nearly
twice as much as their White compatriots.

As for postsecondary professional arenas, despite being about 13% of
the population, Black people make up only about 5% of lawyers. Such
disparity also appears in the business realm: Of the roughly 1,800
chief executive officers to have appeared on the well-known Fortune
500 list, fewer than 25 have been Black (as of 2022, only six are
Black). Furthermore, as the COVID–19 pandemic raged, Black-owned
small businesses failed at dramatically higher rates than White-owned
small businesses, partly due to the disproportionate denial of the
forgivable loans needed to survive the economic downturn.

Health gaps track financial ones. When tested, Black children have
blood lead levels that are twice the rate of White
children—“irreversible” contamination working irremediable harm
on developing brains. Black (and Latino) children with heart
conditions are more likely to die than their White counterparts.
Race-linked mortality-rate disparity has also persisted, and is
highest among infants.

So, too, for adults: Black men are twice as likely to die from
prostate cancer as White men and have lower 5-year cancer survival
rates. Uterine cancer has spiked in recent years among all women—but
has spiked highest for Black women, who die of uterine cancer at
nearly twice the rate of “any other racial or ethnic group.” Black
mothers are up to four times more likely than White mothers to die as
a result of childbirth. And COVID killed Black Americans at higher
rates than White Americans.

“Across the board, Black Americans experience the highest rates of
obesity, hypertension, maternal mortality, infant mortality, stroke,
and asthma.” These and other disparities—the predictable result of
opportunity disparities— lead to at least 50,000 excess deaths a
year for Black Americans vis-à-vis White Americans. That is 80
million excess years of life lost from just 1999 through 2020.

_Amici_ tell us that “race-linked health inequities pervad[e] nearly
every index of human health” resulting “in an overall reduced life
expectancy for racial and ethnic minorities that cannot be explained
by genetics.” Meanwhile—tying health and wealth together—while
she lays dying, the typical Black American “pay[s] more for medical
care and incur[s] more medical debt.”

C

We return to John and James now, with history in hand. It is hardly
John’s fault that he is the seventh generation to graduate from UNC.
UNC should permit him to honor that legacy. Neither, however, was it
James’s (or his family’s) fault that he would be the first. And
UNC ought to be able to consider why.

Most likely, seven generations ago, when John’s family was building
its knowledge base and wealth potential on the university’s campus,
James’s family was enslaved and laboring in North Carolina’s
fields. Six generations ago, the North Carolina “Redeemers” aimed
to nullify the results of the Civil War through terror and violence,
marauding in hopes of excluding all who looked like James from equal
citizenship. Five generations ago, the North Carolina Red Shirts
finished the job. Four (and three) generations ago, Jim Crow was so
entrenched in the State of North Carolina that UNC “enforced its own
Jim Crow regulations.” Two generations ago, North Carolina’s
Governor still railed against “‘integration for integration’s
sake’”—and UNC Black enrollment was minuscule. So, at bare
minimum, one generation ago, James’s family was six generations
behind because of their race, making John’s six generations ahead.

These stories are not every student’s story. But they are many
students’ stories. To demand that colleges ignore race in today’s
admissions practices—and thus disregard the fact that racial
disparities may have mattered for where some applicants find
themselves today—is not only an affront to the dignity of those
students for whom race matters. It also condemns our society to never
escape the past that explains _how and why_ race matters to the very
concept of who “merits” admission.

Permitting (not requiring) colleges like UNC to assess merit fully,
without blinders on, plainly advances (not thwarts) the Fourteenth
Amendment’s core promise. UNC considers race as one of many factors
in order to best assess the entire unique import of John’s and
James’s individual lives and inheritances on _an equal basis_. Doing
so involves acknowledging (not ignoring) the seven generations’
worth of historical privileges and disadvantages that each of these
applicants was born with when his own life’s journey started a mere
18 years ago.

II

Recognizing all this, UNC has developed a holistic review process to
evaluate applicants for admission. Students must submit standardized
test scores and other conventional information. But applicants are not
required to submit demographic information like gender and race. UNC
considers whatever information each applicant submits using a
non-exhaustive list of 40 criteria grouped into eight categories:
“academic performance, academic program, standardized testing,
extracurricular activity, special talent, essay criteria, background,
and personal criteria.

Drawing on those 40 criteria, a UNC staff member evaluating John and
James would consider, with respect to each, his “engagement outside
the classroom; persistence of commitment; demonstrated capacity for
leadership; contributions to family, school, and community; work
history; [and his] unique or unusual interests.” Relevant, too,
would be his “relative advantage or disadvantage, as indicated by
family income level, education history of family members, impact of
parents/guardians in the home, or formal education environment;
experience of growing up in rural or center-city locations; [and his]
status as child or stepchild of Carolina alumni.” The list goes on.
The process is holistic, through and through.

So where does race come in? According to UNC’s admissions-policy
document, reviewers may also consider “the race or ethnicity of any
student” (if that information is provided) in light of UNC’s
interest in diversity. And, yes, “the race or ethnicity of any
student may—or may not—receive a ‘plus’ in the evaluation
process depending on the individual circumstances revealed in the
student’s application.” Stephen Farmer, the head of UNC’s Office
of Undergraduate Admissions, confirmed at trial (under oath) that
UNC’s admissions process operates in this fashion.

Thus, to be crystal clear: Every student who chooses to disclose his
or her race is eligible for such a race-linked plus, just as any
student who chooses to disclose his or her unusual interests can be
credited for what those interests might add to UNC. The record
supports no intimation to the contrary. Eligibility is just that; a
plus is never automatically awarded, never considered in numerical
terms, and never automatically results in an offer of admission. There
are no race-based quotas in UNC’s holistic review process. In fact,
during the admissions cycle, the school prevents anyone who knows the
overall racial makeup of the admitted student pool from reading any
applications.

More than that, every applicant is also eligible for a
diversity-linked plus (beyond race) more generally. And, notably, UNC
understands diversity broadly, including “socioeconomic status,
first-generation college status . . . political beliefs, religious
beliefs . . . diversity of thoughts, experiences, ideas, and
talents.”

A plus, by its nature, can certainly matter to an admissions case. But
make no mistake: When an applicant chooses to disclose his or her
race, UNC treats that aspect of identity on par with other aspects of
applicants’ identity that affect who they are (just like, say, where
one grew up, or medical challenges one has faced). And race is
considered alongside any other factor that sheds light on what
attributes applicants will bring to the campus and whether they are
likely to excel once there. A reader of today’s majority opinion
could be forgiven for misunderstanding how UNC’s program really
works, or for missing that, under UNC’s holistic review process, a
White student could receive a diversity plus while a Black student
might not.

UNC does not do all this to provide handouts to either John or James.
It does this to ascertain who among its tens of thousands of
applicants has the capacity to take full advantage of the opportunity
to attend, and contribute to, this prestigious institution, and thus
merits admission. And UNC has concluded that ferreting this out
requires understanding the _full_ person, which means taking
seriously not just SAT scores or whether the applicant plays the
trumpet, but also any way in which the applicant’s race-linked
experience bears on his capacity and merit. In this way, UNC is able
to value what it means for James, whose ancestors received no
race-based advantages, to make himself competitive for admission to a
flagship school nevertheless. Moreover, recognizing this aspect of
James’s story does not preclude UNC from valuing John’s legacy or
any obstacles that his story reflects.

So, to repeat: UNC’s program permits, but does not require,
admissions officers to value both John’s and James’s love for
their State, their high schools’ rigor, and whether either has
overcome obstacles that are indicative of their “persistence of
commitment.” It permits, but does not require, them to value
John’s identity as a child of UNC alumni (or, perhaps, if things had
turned out differently, as a first-generation White student from
Appalachia whose family struggled to make ends meet during the Great
Recession). And it permits, but does not require, them to value
James’s race—not in the abstract, but as an element of who he is,
no less than his love for his State, his high school courses, and the
obstacles he has overcome.

Understood properly, then, what SFFA caricatures as an unfair
race-based preference cashes out, in a holistic system, to a
personalized assessment of the advantages and disadvantages that every
applicant might have received by accident of birth plus all that has
happened to them since. It ensures a full accounting of everything
that bears on the individual’s resilience and likelihood of
enhancing the UNC campus. It also forecasts his potential for entering
the wider world upon graduation and making a meaningful contribution
to the larger, collective, societal goal that the Equal Protection
Clause embodies (its guarantee that the United States of America
offers genuinely equal treatment to every person, regardless of race).

Furthermore, and importantly, the fact that UNC’s holistic process
ensures a full accounting makes it far from clear that any particular
applicant of color will finish ahead of any particular non-minority
applicant. For example, as the District Court found, a higher
percentage of the most academically excellent in-state Black
candidates (as SFFA’s expert defined academic excellence) were
denied admission than similarly qualified White and Asian American
applicants. That, if nothing else, is indicative of a genuinely
holistic process; it is evidence that, both in theory and in practice,
UNC recognizes that race—like any other aspect of a person—may
bear on where both John and James start the admissions relay, but will
not fully determine whether either eventually crosses the finish line.

III

A

The majority seems to think that race blindness solves the problem of
race-based disadvantage. But the irony is that requiring colleges to
ignore the initial race-linked opportunity gap between applicants like
John and James will inevitably widen that gap, not narrow it. It will
delay the day that every American has an equal opportunity to thrive,
regardless of race.

SFFA similarly asks us to consider how much longer UNC will be able to
justify considering race in its admissions process. Whatever the
answer to that question was yesterday, today’s decision will
undoubtedly extend the duration of our country’s need for such race
consciousness, because the justification for admissions programs that
account for race is inseparable from the race-linked gaps in health,
wealth, and well-being that still exist in our society (the closure of
which today’s decision will forestall).

To be sure, while the gaps are stubborn and pernicious, Black people,
and other minorities, have generally been doing better. But those
improvements have only been made possible because institutions like
UNC have been willing to grapple forthrightly with the burdens of
history. SFFA’s complaint about the “indefinite” use of
race-conscious admissions programs, then, is a non sequitur. These
programs respond to deep-rooted, objectively measurable problems;
their definite end will be when we succeed, together, in solving those
problems.

Accordingly, while there are many perversities of today’s judgment,
the majority’s failure to recognize that programs like UNC’s carry
with them the seeds of their own destruction is surely one of them.
The ultimate goal of recognizing James’s full story and
(potentially) admitting him to UNC is to give him the necessary tools
to contribute to closing the equity gaps discussed in Part I, _supra_,
so that he, his progeny—and therefore all Americans—can compete
without race mattering in the future. That intergenerational project
is undeniably a worthy one.

In addition, and notably, that end is not fully achieved just because
James is admitted. Schools properly care about preventing racial
isolation on campus because research shows that it matters for
students’ ability to learn and succeed while in college if they live
and work with at least some other people who look like them and are
likely to have similar experiences related to that shared
characteristic. Equally critical, UNC’s program ensures that
students who don’t share the same stories (like John and James) will
interact in classes and on campus, and will thereby come to understand
each other’s stories, which amici tell us improves cognitive
abilities and critical-thinking skills, reduces prejudice, and better
prepares students for postgraduate life.

Beyond campus, the diversity that UNC pursues for the betterment of
its students and society is not a trendy slogan. It saves lives. For
marginalized communities in North Carolina, it is critically important
that UNC and other area institutions produce highly educated
professionals of color. Research shows that Black physicians are more
likely to accurately assess Black patients’ pain tolerance and treat
them accordingly (including, for example, prescribing them appropriate
amounts of pain medication). For high-risk Black newborns, having a
Black physician more than doubles the likelihood that the baby will
live, and not die. Studies also confirm what common sense counsels:
Closing wealth disparities through programs like UNC’s—which,
beyond diversifying the medical profession, open doors to every sort
of opportunity—helps address the aforementioned health disparities
(in the long run) as well.

Do not miss the point that ensuring a diverse student body in higher
education helps _everyon_e, not just those who, due to their race,
have directly inherited distinct disadvantages with respect to their
health, wealth, and wellbeing. Amici explain that students of every
race will come to have a greater appreciation and understanding of
civic virtue, democratic values, and our country’s commitment to
equality. The larger economy benefits, too: When it comes down to the
brass tacks of dollars and cents, ensuring diversity will, if
permitted to work, help save hundreds of billions of dollars annually
(by conservative estimates).

Thus, we should be celebrating the fact that UNC, once a stronghold of
Jim Crow, has now come to understand this. The flagship educational
institution of a former Confederate State has embraced its
constitutional obligation to afford genuine equal protection to
applicants, and, by extension, to the broader polity that its students
will serve after graduation. Surely that is progress for a university
that once engaged in the kind of patently offensive race-dominated
admissions process that the majority decries.

With its holistic review process, UNC now treats race as merely one
aspect of an applicant’s life, when race played a totalizing,
all-encompassing, and singularly determinative role for applicants
like James for most of this country’s history: No matter what else
was true about him, being Black meant he had no shot at getting in
(the ultimate race-linked uneven playing field). Holistic programs
like UNC’s reflect the reality that Black students have only
relatively recently been permitted to get into the admissions game at
all. Such programs also reflect universities’ clear-eyed optimism
that, one day, race _will_ no longer matter.

So much upside. Universal benefits ensue from holistic admissions
programs that allow consideration of all factors material to merit
(including race), and that thereby facilitate diverse student
populations. Once trained, those UNC students who have thrived in the
university’s diverse learning environment are well equipped to make
lasting contributions in a variety of realms and with a variety of
colleagues, which, in turn, will steadily decrease the salience of
race for future generations. Fortunately, UNC and other institutions
of higher learning are already on this beneficial path. In fact, all
that they have needed to continue moving this country forward (toward
full achievement of our Nation’s founding promises) is for this
Court to get out of the way and let them do their jobs. To our great
detriment, the majority cannot bring itself to do so.

B

The overarching reason the majority gives for becoming an impediment
to racial progress—that its own conception of the Fourteenth
Amendment’s Equal Protection Clause leaves it no other option—has
a wholly self-referential, two-dimensional flatness. The majority and
concurring opinions rehearse this Court’s idealistic vision of
racial equality, from _Brown_ forward, with appropriate lament for
past indiscretions. See, _e.g., ante_, at 11. But the race-linked
gaps that the law (aided by this Court) previously founded and
fostered—which indisputably define our present reality—are
strangely absent and do not seem to matter.

With let-them-eat-cake obliviousness, today, the majority pulls the
ripcord and announces “colorblindness for all” by legal fiat. But
deeming race irrelevant in law does not make it so in life. And having
so detached itself from this country’s actual past and present
experiences, the Court has now been lured into interfering with the
crucial work that UNC and other institutions of higher learning are
doing to solve America’s real-world problems.

No one benefits from ignorance. Although formal race-linked legal
barriers are gone, race still matters to the lived experiences of all
Americans in innumerable ways, and today’s ruling makes things
worse, not better. The best that can be said of the majority’s
perspective is that it proceeds (ostrich-like) from the hope that
preventing consideration of race will end racism. But if that is its
motivation, the majority proceeds in vain. If the colleges of this
country are required to ignore a thing that matters, it will not just
go away. It will take _longer_ for racism to leave us. And,
ultimately, ignoring race just makes it matter more.

The only way out of this morass—for all of us—is to stare at
racial disparity unblinkingly, and then do what evidence and experts
tell us is required to level the playing field and march forward
together, collectively striving to achieve true equality for all
Americans. It is no small irony that the judgment the majority hands
down today will forestall the end of race-based disparities in this
country, making the colorblind world the majority wistfully touts much
more difficult to accomplish.

* * *

As the Civil War neared its conclusion, General William T. Sherman and
Secretary of War Edwin Stanton convened a meeting of Black leaders in
Savannah, Georgia. During the meeting, someone asked Garrison Frazier,
the group’s spokesperson, what “freedom” meant to him. He
answered, “‘placing us where we could reap the fruit of our own
labor, and take care of ourselves . . . to have land, and turn it and
till it by our own labor.’”

Today’s gaps exist because that freedom was denied far longer than
it was ever afforded. Therefore, as Justice Sotomayor correctly and
amply explains, UNC’s holistic review program pursues a righteous
end—legitimate “‘because it is defined by the Constitution
itself. The end is the maintenance of freedom.’” Jones v. Alfred
H. Mayer Co., 392 U. S. 409, 443–444 (1968) (quoting Cong. Globe,
39th Cong., 1st Sess., 1118 (1866) (Rep. Wilson)).

Viewed from this perspective, beleaguered admissions programs such as
UNC’s are not pursuing a patently unfair, ends-justified ideal of a
multiracial democracy at all. Instead, they are engaged in an earnest
effort to secure a more functional one. The admissions rubrics they
have constructed now recognize that an individual’s
“merit”—his ability to succeed in an institute of higher
learning and ultimately contribute something to our society—cannot
be fully determined without understanding that individual in full.
There are no special favorites here.

UNC has thus built a review process that _more accurately_ assesses
merit than most of the admissions programs that have existed since
this country’s founding. Moreover, in so doing, universities like
UNC create pathways to upward mobility for long excluded and
historically disempowered racial groups. Our Nation’s history more
than justifies this course of action. And our present reality
indisputably establishes that such programs are still needed—for the
general public good—because after centuries of state-sanctioned (and
enacted) race discrimination, the aforementioned intergenerational
race-based gaps in health, wealth, and well-being stubbornly persist.

Rather than leaving well enough alone, today, the majority is having
none of it. Turning back the clock (to a time before the legal
arguments and evidence establishing the soundness of UNC’s holistic
admissions approach existed), the Court indulges those who either do
not know our Nation’s history or long to repeat it. Simply put, the
race-blind admissions stance the Court mandates from this day forward
is unmoored from critical real-life circumstances. Thus, the Court’s
meddling not only arrests the noble generational project that
America’s universities are attempting, it also launches, in effect,
a dismally misinformed sociological experiment.

Time will reveal the results. Yet the Court’s own missteps are now
both eternally memorialized and excruciatingly plain. For one
thing—based, apparently, on nothing more than Justice Powell’s
initial say so—it drastically discounts the primary reason that the
racial-diversity objectives it excoriates are needed, consigning
race-related historical happenings to the Court’s own analytical
dustbin. Also, by latching onto arbitrary timelines and professing
insecurity about missing metrics, the Court sidesteps unrefuted proof
of the compelling benefits of holistic admissions programs that factor
in race (hard to do, for there is plenty), simply proceeding as if no
such evidence exists. Then, ultimately, the Court surges to vindicate
equality, but Don Quixote style—pitifully perceiving itself as the
sole vanguard of legal high ground when, in reality, its perspective
is not constitutionally compelled and will hamper the best judgments
of our world-class educational institutions about who they need to
bring onto their campuses right now to benefit every American, no
matter their race.

The Court has come to rest on the bottom-line conclusion that racial
diversity in higher education is only worth potentially preserving
insofar as it might be needed to prepare Black Americans and other
underrepresented minorities for success in the bunker, not the
boardroom (a particularly awkward place to land, in light of the
history the majority opts to ignore). It would be deeply unfortunate
if the Equal Protection Clause actually demanded this perverse,
ahistorical, and counterproductive outcome. To impose this result in
that Clause’s name when it requires no such thing, and to thereby
obstruct our collective progress toward the full realization of the
Clause’s promise, is truly a tragedy for us all.

_[KETANJI BROWN JACKSON is an associate justice of the Supreme Court
of the United States.]_

* Ketanji Brown Jackson
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