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A revolution in university admissions appears to be at hand. 
The Supreme Court has agreed to hear two cases on affirmative action in higher education, raising the likelihood that it will strike down the practice in the near future. The only thing surprising about this development is the timing, in the same Supreme Court term that already promises blockbuster conservative judgments on abortion and guns. 
The legality of race-based preferences in college admissions has been hanging by a thread for decades: Certainly since 2003, when Justice Sandra Day O’Connor provided the swing vote in favor, and arguably since 1978, when it was Justice Lewis Powell. Today, it would take two swing voters, Chief Justice John G. Roberts and Justice Brett Kavanaugh, to preserve the status quo. 
The legal background goes back to the 1970s, when Powell wrote a single-justice concurrence in a case called Regents of California v. Bakke that has remained the law ever since. The basic question, then as now, was whether it violates the equal protection clause of the 14th Amendment for a public university to take account of an applicant’s race in making an admissions decision. 
Liberals devised affirmative action to remedy the history of racism in admissions. But Powell did not embrace that rationale to explain why it was constitutional. Instead, he said that it was permissible for universities to consider race as part of an effort to create a diverse student body. The rationale came from a friend-of-the-court brief filed by Harvard University (where I teach) in which the university articulated a vision in which all students were said to have something special to contribute, whether they were "Idaho farm boys" or people of color. 
In the decades that followed, "diversity" became not just a legal rationale to allow affirmative action, but a value in itself, now inextricably linked to racial diversity. At the same time, conservative opposition to affirmative action has never waned. Constitutional attacks by activist groups have been a regular feature of the politics around it — both in the form of referendums, as in California, and in the form of legal challenges seeking to overturn Powell’s Bakke opinion. 
In 2003, O’Connor provided the vote to keep diversity-based affirmative action constitutional as part of an overall qualitative assessment of candidates, even as she also held that race could not be counted quantitatively as part of a points system. The cases were Grutter v. Bollinger and Gratz v. Bollinger, both involving the University of Michigan. 
When O’Connor retired and Justice Anthony Kennedy became the court’s main swing voter, conservatives thought they were poised to end affirmative action altogether, since Kennedy had voted with them in Grutter and Gratz. But to their surprise and outrage, Kennedy flipped sides. In the 2016 case of Fisher v. University of Texas, he cast the deciding vote to uphold consideration of race as part of a "holistic" admissions analysis guided by diversity. 
For both O’Connor and Kennedy, the key motivation seems to have been that striking down affirmative action would leave elite universities with fewer Black and Latino students than the percentage in the general population. Neither justice wanted to be the direct cause of the cultural crisis that could emerge if those numbers changed drastically as a result of a judicial decision. 
The question now is whether Roberts, who has consistently voted to strike down affirmative action, and Kavanaugh, who hasn’t yet had the chance to vote on the issue on the Supreme Court, would go the way of Kennedy. That would entail betraying conservative orthodoxy. Roberts has shown a willingness to do that to preserve the court’s reputation for judicial consistency. But to do it again he would need Kavanaugh’s vote, too. 
Kavanaugh has long-standing ties to both Yale, where he went for college and law school, and Harvard Law School, where he taught for many years as a visiting professor. He also clerked for Kennedy. Under different circumstances, those social facts might have given reason to suspect that he might be inclined to defer to the universities’ long-standing practices. 
But Kavanaugh is already under criticism by conservatives for joining Roberts in upholding President Joe Biden’s vaccine mandate for health-care workers. Deviating from the movement’s position on affirmative action would put him at risk for being treated as an enemy by liberals on some issues and conservatives on others. 
The upshot is that this is likely to be the end of the road for the diversity rationale. Given that Harvard’s diversity theory provided the original rationale embraced by Powell in the Bakke case, perhaps it’s fitting that Harvard is a party to one of the two cases the court just agreed to hear. The key constitutional decision would have to come in the other case, involving the University of North Carolina, which is a public institution. The Harvard case, however, may serve the conservative justices as a good rhetorical tool. 
In the Harvard case, anti-affirmative-action activists argued that diversity provided cover for discriminating against Asian-American applicants. The lower courts rejected that charge. But the conservative justices could revive the claim to buttress the argument that affirmative action inherently violates the equal-protection guarantee for those who don’t benefit from it. 
If that happens, and affirmative action ends, universities will have to find ways to respond. They already are experimenting with potential mechanisms to do so — but that will have to be the subject of another column. 
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast "Deep Background." He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include "The Three Lives of James Madison: Genius, Partisan, President." This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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This Supreme Court won't uphold college affirmative action

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In a victory for the rule of law and the separation of federal powers, the Supreme Court said Wednesday that a bipartisan congressional committee investigating the Jan. 6 insurrection can review some of former president Donald Trump's White House records. 
The documents may fill in some blanks about Trump's involvement in any planning for the Jan. 6 siege. A number of Trump's senior aides who had been involved with efforts to stage a coup by overturning the 2020 presidential election have also drawn the Jan. 6 committee's attention. On Tuesday, it subpoenaed documents and testimony from Trump advisers Rudy Giuliani, Sidney Powell, Jenna Ellis and Boris Epshteyn; it has previously subpoenaed Steve Bannon and Trump's former chief of staff, Mark Meadows. 
Trump had waged a legal battle to retain his email, phone records, visitor logs, speech drafts and handwritten notes, arguing that they were protected by executive privilege. Citing the gravity of the Jan. 6 siege and its threat to democracy, President Joe Biden waived the privilege. A federal appeals court, also noting the severity of the attacks and the need to prevent a recurrence, ruled last month that Congress was entitled to the documents. Trump then took his argument to the Supreme Court and lost. 
The court's ruling was terse. Its unsigned order simply states that it will not grant a stay and that the question of whether a former president can assert privilege over the current president's objections was irrelevant, "because the Court of Appeals concluded that President Trump's claims would have failed even if he were the incumbent." 
Justice Brett Kavanaugh issued a kind of concurrence, saying he respected the court's decision but that the appellate court was wrong to say that a former president shouldn't be able to assert executive privilege to protect confidential communications. Justice Clarence Thomas lodged a lone dissent, saying he would have heard the case. 
Despite its brevity, the order is hugely significant. It's not every president who helps engineer a coup and foment an insurrection, and the Supreme Court has taken an important step forward in ensuring that the Oval Office's legal privileges don't prevent any of its occupants from being held to account. 
The 800 or so pages of White House documents that have been in dispute are not under Trump's control. The National Archives has them, and now must release them to Congress. 
What the Jan. 6 committee then chooses to do with the documents should it find any incriminating evidence is unclear. If it makes a criminal referral to the Justice Department, then Attorney General Merrick Garland has more prosecutorial decisions to weigh. If the documents are damning, it also may be some time before the public sees them. 
On the other hand, it's still not entirely clear that the Justice Department has focused directly on Trump thus far in its own Jan. 6 probe. And the Jan. 6 committee is working against the clock as some of Trump's advisers continue to ignore its requests for records and testimony. If the midterm elections shift control of the House of Representatives to Republicans, the committee may get disbanded shortly thereafter. 
But take heart, for the moment at least. The Supreme Court's ruling is consistent with its previous stance on another important set of Trump records: his tax returns. 
Last year, it ruled that Trump had to provide his tax returns and other financial records to New York prosecutors investigating him and his company for fraud. Trump argued then that as an ex-president, he should be immune from such requests. "In our judicial system, 'the public has a right to every man's evidence,'" wrote Chief Justice John Roberts. "Since the earliest days of the Republic, 'every man' has included the President of the United States." 
In short: Nobody is above the law. Now the court has also ruled that presidents, even once out of office, are not immune from congressional oversight. That reality carries even greater weight when it involves a president who not only incited sedition but may have helped orchestrate it. 
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners. Timothy L. O'Brien is a senior columnist for Bloomberg Opinion.

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