Affirmative Action, Reaction, and Inaction: A Positive Political Theory Analysis of Affirmative Action in Higher Education

Abstract

Traditional analyses of the Supreme Court’s decisions on affirmative action focus on how the political ideologies of individual Justices shape the Court’s rulings. This is an important part of the story, but it is not all of it; it omits a critical factor influencing the Court’s decisions – the Court’s conscious strategic consideration of political forces that affect the Court’s legitimacy and its long-term policy goals.

Positive Political Theory (PPT) – the idea that political bodies (including the Court) are actually strategic actors, acting rationally and with political awareness to maximize certain ends – provides a useful lens through which to view the Court’s decisions. Through that lens, this article analyzes the major Supreme Court cases regarding affirmative action in higher education, from Defunis v. Odegaard in 1974 to the ongoing Students for Fair Admissions, Inc. v. President & Fellows of Harvard College case which may reach the Supreme Court in the next few years. This article demonstrates that the Court is a strategic entity making deliberate and politically expedient decisions which reflect the Court’s (and its constituent members’) desire to preserve institutional legitimacy and maximize the longevity of Justices’ ideological preferences as reflected through policy and law.

Keywords: affirmative action, positive political theory, law and politics, judicial strategy, law and race, fourteenth amendment, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, SFFA v. Harvard, discrimination against Asians