Cite as: 600 U. S. ____ (2023)
3
Kavanaugh, J., concurring
again held that race-based affirmative action in higher education did not violate the Equal Protection Clause or Title VI. Grutter, 539 U. S., at 343. This time, however, the Court also specifically indicated—despite the reservations of Justice Ginsburg and Justice Breyer—that race-based affirmative action in higher education would not be constitutionally justified after another 25 years, at least absent something not “expect[ed].” Ibid. And various Members of the Court wrote separate opinions explicitly referencing the Court’s 25-year limit.
- Justice O’Connor’s opinion for the Court stated: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Ibid.
- Justice Thomas expressly concurred in “the Court’s holding that racial discrimination in higher education admissions will be illegal in 25 years.” Id., at 351 (opinion concurring in part and dissenting in part).
- Justice Thomas, joined here by Justice Scalia, reiterated “the Court’s holding” that race-based affirmative action in higher education “will be unconstitutional in 25 years” and “that in 25 years the practices of the Law School will be illegal,” while also stating that “they are, for the reasons I have given, illegal now.” Id., at 375–376.
- Justice Kennedy referred to “the Court’s pronouncement that race-conscious admissions programs will be unnecessary 25 years from now.” Id., at 394 (dissenting opinion).
- Justice Ginsburg, joined by Justice Breyer, acknowledged the Court’s 25-year limit but questioned it, writing that “one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely
