Aziz Huq writes:

It is easy to think of the Supreme Court’s decision invalidating Harvard and UNC-Chapel Hill’s affirmative action programs as the end of a long road.

A court with a Republican-appointed majority has been chipping away at the legality of using race to allocate state benefits since the Reagan administration. And a young lawyer in Reagan’s White House by the name of John Roberts candidly condemned state affirmative action measures in blunt terms as “highly objectionable.” Now, after Roberts’ opinion Thursday, “objectionable” has become “unconstitutional” thanks simply to the changing composition of the court.

Even if this week’s decision is the final flourish of a conservative legal project that has been in the works since the 1980s, it may also signal the opening of a new chapter in the history of American struggles over race. A conservative majority of the Supreme Court could well build on this ruling to undermine further efforts by the government and firms to identify and address harms that fall distinctively on racial and ethnic minorities.

There are two important ways in which this week’s decision may be the beginning, and not merely the closing of a chapter, for the court. The first would move the law in a meaningfully more conservative direction. The second, if fully realized, would have destabilizing legal and political consequences on par, or greater, than last year’s decision to throw out Roe v. Wade.

The first, and the most likely, “next shoe to drop” after this week’s ruling is a decision invalidating what are called “disparate impact” rules. The idea behind disparate impact is simple: Often, people who act for bad reasons don’t wear their racist motives on their sleeves or are simply negligent about the way their actions entrench past, race-based disadvantage. So disparate-impact laws allow a plaintiff to prove they encountered discrimination by pointing to large and unexplained racial disparities.

But conservative justices have had disparate impact in their sights for more than a decade now: This week’s more categorical ruling against race-based college admissions adds a powerful new weapon to their repertoire. For it is impossible to talk of “racially disparate impact” without talking of … race. [Continue reading…]