Next week, the Supreme Court will commence a new Term. The Court’s docket provides the conservative super-majority with multiple opportunities to continue to radically remake constitutional law.
For example, in a case from Colorado, the Court will decide whether a website designer has a First Amendment right to take on jobs in support of opposite-sex but not same-sex marriages, despite the state’s civil rights law barring such discrimination. A case from North Carolina asks the Court to endorse the so-called independent state legislature (ISL) theory, which figured prominently in Donald Trump’s scheme to override the 2020 presidential election and could produce similar mischief in upcoming elections. And in another case from North Carolina—this one involving the state’s flagship university—the Justices could overrule precedents dating to the 1970s to hold that the Fourteenth Amendment’s Equal Protection Clause bars all or nearly all race-based affirmative action.
Each of those cases involves constitutional interpretation. It might therefore be thought that there is nothing Congress can do to prevent or mitigate the damage. After all, a constitutional amendment requires passage by two-thirds majorities in each house of Congress and ratification by three quarters of the states. In this view, Mitch McConnell’s successful blockade of Merrick Garland to steal a Supreme Court seat and the untimely death of Ruth Bader Ginsburg followed by the shameless rush to confirm Amy Coney Barrett combined to bake in the extremely conservative Court we now have.
Yet Congress has tools at its disposal. Most radically, Congress could increase the size of the Court or strip some of its jurisdiction. More modestly but crucially, Congress can combat ISL by exercising its power under Article I, Section 4 to “make or alter” state laws governing congressional elections and under Article II, Section 1 to “determine the time of choosing the electors” in a presidential election. And to its great credit, the House of Representatives passed a bill—H.R. 1—that exercises those powers in ways that would substantially strengthen American democracy. To its great discredit, the Senate (mostly due to hesitation by Joe Manchin and Kyrsten Sinema) has not moved forward with H.R. 1.
What about those other cases? There is little Congress can do (short of Court expansion or jurisdiction stripping) to protect federal, state, and local antidiscrimination law against the Court’s eagerness to provide exemptions based on speech and religion, so long as those exemptions are ostensibly found in the Constitution. Nor can ordinary legislation stop the Court from perverting the Fourteenth Amendment—adopted during Reconstruction chiefly to empower Congress to enact legislation benefiting formerly enslaved African Americans—by turning it into an obstacle to diversity and inclusion.
But if the University of North Carolina and other great state colleges and universities seem doomed to succumb to the SCOTUS conservative supermajority’s hostility to affirmative action, the same fate need not befall private colleges and universities. In addition to hearing the UNC case, the Court will hear a similar challenge to race-based affirmative action in admissions at Harvard College. Congress clearly has the power to affect the outcome of the Harvard case.
State Action and Title VI
Except for the Thirteenth Amendment, the Constitution constrains government and its agents, not private actors. Thus, the Fourteenth Amendment’s Equal Protection Clause does not impose any limits on Harvard or other private colleges and universities.
Why, then, was Harvard sued? Although the Constitution does not apply to private actors, Title VI of the 1964 Civil Rights Act does. It forbids discrimination “on the ground of race, color, or national origin” by entities that receive federal funds. Because of the pervasive role of the federal government in funding research and financial aid, Title VI covers nearly every private college and university in the country. And since the Supreme Court’s 1978 Bakke ruling, the case law has treated the limits imposed by Title VI as coextensive with those imposed by the Equal Protection Clause on state colleges and universities.
It is conceivable that the Court could change that practice in the Harvard case. After all, if the Court is willing to change course by forbidding nearly all affirmative action, it could surely take the lesser step of changing its view that the statutory and constitutional limits are coextensive. However, that seems extremely unlikely. The text of Title VI is, if anything, easier to read as containing a principle of “color-blindness” than is the text of the Fourteenth Amendment. Hence, if five or six Justices construe the latter to forbid race-based affirmative action for state colleges and universities, they will almost certainly construe Title VI to have the same impact on private ones.
Yet the story need not end there. In the face of such a ruling—or better yet, now, before the Court rules—Congress can amend Title VI to make clear that it does not forbid affirmative action. Doing so would be straightforward. Congress could append the following statement to the existing statute: “Consideration of race, color, or national origin for the purpose of achieving the benefits of diversity shall not be deemed to violate this provision.” That language would make explicit the standard under which colleges and universities have operated for decades. It would not protect affirmative action programs at state colleges and universities against the stricter standard the Supreme Court will likely adopt in the UNC case, but it would protect Harvard and other private actors.
Will Congress Act?
Note that under my proposed amendment to Title VI, no private college, university, or other recipient of federal funds would be required to practice race-based affirmative action. The amendment would simply clarify that the decision whether to do so rests with the colleges and universities themselves. That fact ought to make the proposal appealing to conservatives who frequently complain about what they consider to be over-regulation. Leaving an important decision about governance to the leadership of private entities enacts a principle of limited government.
Yet one would need to be especially naïve to think that any congressional Republicans would support my proposal. Indeed, it is possible that even substantial numbers of Democratic lawmakers would defect.
Unfortunately, race-based affirmative action is sufficiently unpopular that voters have rejected it when it has appeared on the ballot even in blue states. For instance, in 1996, California voters adopted Proposition 209, which drastically curtailed affirmative action at state institutions. They reaffirmed their opposition to affirmative action just two years ago, when they rejected a ballot initiative that would have repealed Prop 209. It is thus difficult to see poll-savvy Democrats in Congress embracing my proposal.
Moreover, to enact my amendment to Title VI, Congress would need either 60 votes in the Senate to overcome a filibuster or for all 50 Democrats (plus Vice President Harris) to change the filibuster rule. (Aficionados of Senate procedure might be wondering whether a mere 50 votes might suffice using the budget reconciliation mechanism; they would not; although Title VI involves federal spending, my proposed amendment does not; thus the parliamentarian would very likely rule it out of order as “extraneous matter” under the Byrd rule.) There is, alas, no way that even 50, much less 60, Senate votes are forthcoming.
By now readers might be annoyed with me. Why did I propose a bill that I myself acknowledge is politically a non-starter? One answer is that I’m a law professor, not a politician. I see my job principally as analyzing the law and sometimes offering suggestions for improving it. If political actors responding to their constituents’ real or imagined views reject my suggestions, that is their business.
But there is also a practical reason to make impractical suggestions. The window of what is possible shifts over time. For the 49 years between Roe v. Wade and Dobbs v. Jackson Women’s Health Org., anti-abortion activists proposed laws that either would not be enacted or, if enacted, would be struck down by the courts. They played a long game, hoping that someday their efforts would bear fruit.
So too for progressives now. With conservatives in power in most states as well as in the U.S. Supreme Court, and facing the very real prospect of losing Congress and, in two more years, the presidency, we can and should make a call for urgent action now. But in doing so, we should also understand that we aim to maintain our lawmaking muscle mass for a day when we have the ability to use it.