Chief Justice John Roberts penned a historic opinion today, as the Supreme Court struck down affirmative action in the context of university admissions policies. “Eliminating racial discrimination means eliminating all of it,” wrote Roberts in a sharp 6-3 ruling. His language echoes a previous decision, where the Chief wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race” (see Parents Involved). Roberts, a chief justice who strives for narrow rulings, and seeks, by appearance, to build consensus on the Court, again strikes a different judicial pose in affirmative action decisions.

Roberts’ argument is unsurprising for those following the Court’s conservative wing during the past several decades. Essentially, the Court determined Harvard’s and North Carolina’s admissions policies were not narrowly tailored enough to escape constitutional scrutiny. Race alone was too important of a factor, apart from other considerations, in the admissions of favored minority students and in the denial of both disfavored minorities (like Asian Americans) and white students.

The ruling closes a particular chapter on the Court’s affirmative action jurisprudence. Since Bakke (1978), a fractured decision in which Justice Powell’s solitary opinion somehow turned into precedent, the Court has wrestled with how to solve a hard question: is past discrimination against marginalized racial groups a sufficient justification for treating contemporary students differently based on race? No one denied, at any point, that racial discrimination of a kind was occurring as a result of affirmative action. Its permissibility and its structure were the points of debate.

As Roberts picked through Harvard and North Carolina’s systems of admissions, he seized on a variety of concerns (too voluminous to work through here), but one specific issue caught my attention. Since we all should agree that racial categorization via government is invidious, he reasoned, its duration should be severely limited. In Grutter (2003) the Court famously noted it had been 25 years since Bakke, and “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Though we are not yet 25 years removed from Grutter, Roberts used Grutter to argue these sorts of programs cannot be open-ended, and thus require measurable, concrete goals that might naturally wind them down. Achieving goals like “training future leaders” or “preparing graduates to adapt to an increasingly pluralistic society” is too nebulous for Roberts and the majority. “The interests that respondents seek, though plainly worthy, are inescapably imponderable” for the Court to monitor. Besides, “respondents’ admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue.”

Though controversy will swirl, and reverberations will follow, Roberts’ opinion deserves to stand aside Justice Harlan’s powerful dissent in Plessy, and Warren’s majority ruling in Brown. Together they appeal to the simple language and meaning of the Fourteenth Amendment and the Civil Rights Act of 1964. Racially-based decisions by government, regardless of the motivation, stands opposed to our constitutional principles, and contrasts with the Declaration’s magisterial assertion of equality as a self-evident truth. While our nation still labors to provide equal opportunities for all, especially for high quality education at the elementary and secondary levels, our struggles should not justify differential treatment by universities.

In Thursday’s ruling, the Court combined Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, which was not necessarily an obvious choice. As a public institution, North Carolina (like Michigan in Gratz and Grutter, and Texas in Fisher 1 and 2) is obviously implicated by the Fourteenth Amendment’s Equal Protection Clause, which targets state action. Harvard, as a private entity, is in a different legal situation. At least technically, it should fall under Title VI of the Civil Rights Act, which forbids racial discrimination by organizations that receive federal funding. Roberts’ opinion elides the distinction, ruling that both fall under the Constitution’s language. “Respondents’ admissions systems–however well intentioned and implemented in good faith–fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.” In fairness, in footnote 2, he refers to Gratz’s (2003) ruling that “discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.” So for Roberts, this is a distinction without a difference.

Justice Gorsuch’s concurring opinion attacks this issue directly. Gorsuch does not assail Roberts necessarily, but he instead attempts to demonstrate that Harvard’s approach obviously runs afoul of Title VI. Bakke probably should have been settled on plain, statutory grounds, just as Stevens, Burger, Rehnquist, and Stewart argued then. Had Powell gone along with them, our law and our politics might have evolved in a very different way. In spite of the possibility that violations of Title VI and the Equal Protection Clause are reasonably the same, settling disputes on statutory grounds when possible is prudent for the Court. Statutory interpretations are more easily checked by the elected branches of government, while cases settled on constitutional grounds feel final and increase the psychological and political stakes for losing parties. Unnecessarily bringing the Constitution to bear in a matter empowers the Court, which should rankle those concerned with the separation and balance of powers in our system of government. Again, the end result would have been the same, because the relevant standards for determining the violations are the same, but the manner of reaching the result matters.

I have not yet read Justice Thomas’s or Justice Kavanaugh’s concurring opinions, or Justice Sotomayor’s or Justice Jackson’s dissents. Ed Whelan, of the Ethics and Public Policy Center, suggests everyone should read Thomas and Jackson’s arguments side-by-side. Perhaps that will be worth additional comments.