How Trump's Attack on Affirmative Action Could Succeed

A year ago, affirmative action in higher education seemed safe for a generation, after Justice Anthony Kennedy blessed it in a landmark Supreme Court opinion. Now President Donald Trump’s Department of Justice is signaling that it plans to challenge the constitutionality of the practice in a way the federal government has never done before. And with Justice Neil Gorsuch in place and the possibility that Kennedy might retire in the next few years, the challenge could succeed. The legal reality is that higher ed affirmative action is now vulnerable.

The sense of security that followed Kennedy’s June 2016 opinion in Fisher v. Texas was a false one. Along with Kennedy’s liberal vote the same term in an important abortion case, Whole Women’s Health v. Hellerstedt, the affirmative-action decision seemed like Kennedy’s attempt to cement his liberal legacy. Given that most observers expected Democrat Hillary Clinton to be elected president, Kennedy’s legacy was expected to remain intact when she nominated successor justices to Antonin Scalia and eventually to Kennedy himself.