Race in 2028

By ROSS DOUTHAT
NYT

During last week’s Supreme Court confirmation hearings, Republican senators kept bringing the conversation back to 2001 — the year when Sonia Sotomayor delivered the most famous version of her line about how a “wise Latina woman with the richness of her experiences” might outshine a white male judge.

It was left to a Democratic senator, Herb Kohl of Wisconsin, to ask about the much more interesting year of 2028.

By then, according to recent Supreme Court jurisprudence, some kinds of affirmative action may no longer be permissible. In 2003, writing for the majority in Grutter v. Bollinger, Sandra Day O’Connor upheld race-based discrimination in college admissions ... but only for the current generation. Such policies “must be limited in time,” she wrote, adding that “the Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

It was a characteristic O’Connor move: unmoored from any high constitutional principle but not without a certain political shrewdness. In a nation that aspires to colorblindness, her opinion acknowledged, affirmative action can only be justified if it comes with a statute of limitations. Allowing reverse discrimination in the wake of segregation is one thing. Discriminating in the name of diversity indefinitely is quite another.

(More here.)