Gail L. Heriot and Alexander M. Heideman:

This article makes the following points:

I. Some commentators have argued that in deciding Grutter v. Bollinger (2003), the Supreme Court (and Justice O’Connor in particular) was influenced by the “broad societal consensus” in favor of race-preferential admissions policies, there was no such consensus in 2003. Indeed, the consensus of opinion went—and remains—in the opposite direction. Thus, if Justice O’Connor was so influenced, she was mistaken.  

II. Even if there had been such a “broad societal consensus,” it should not have excused the Court from its obligation to strictly scrutinize the University of Michigan’s racially discriminatory admissions policy. Unfortunately, by purporting to “defer” to the university’s judgment on whether the need for racial diversity in education is “compelling,” Justice O’Connor essentially admitted that the Court was not scrutinizing the policy with the level of care that had become customary in racial discrimination cases up to that point. 

III. With the overwhelming rejection of California’s Proposition 16 in the November 2020 elections, it has become all the more clear that a societal consensus really does exist on race-preferential admissions policies, but it’s a broad agreement against such policies, not a broad agreement in favor. Certainly, therefore, if Justice O’Connor based her opinion in part on the belief that Americans were somehow favorably disposed toward race-preferential admissions (at least for the short term), that reasoning can be safely dismissed now. With Students for Fair Admissions v. Harvard University likely to come before the Court in the near future, the lesson of Proposition 16’s defeat should be (and likely will be) drawn to the Court’s attention.