Bloomberg Law
Nov. 4, 2022, 10:22 AM

O’Connor’s Affirmative Action Timeline May Undermine Precedent

Lydia Wheeler
Lydia Wheeler
Senior Reporter

Welcome back to another edition of Opening Argument, a reported column where I dig into interesting questions of law and unpack issues dividing appeals courts. Today, a look at the timeline for affirmative action.

Whatever slim chance there is for affirmative action to survive, even if it’s just for five more years, could hinge on an aside, tucked at the end of the US Supreme Court’s 2003 decision upholding the use of race in college admissions.

During marathon arguments Oct. 31 in two cases challenging race-conscious admissions programs at Harvard College and the University of North Carolina, members of the court’s conservative wing pressed the schools’ attorneys for an answer on when the practice will end and what to do with the supposed 25-year timeframe Justice Sandra Day O’Connor set in Grutter v. Bollinger.

In that decision, O’Connor noted it had been 25 years since the court first approved the use of race to diversify student bodies at public institutions. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” she wrote.

Vikram Amar, dean of the University of Illinois College of Law, said all the attention that line has received highlights the care justices should take in drafting their decisions.

O’Connor’s comment was intended to be nothing more than an expression of hope, he said. But not everyone seems to see it that way.

Justice Brett Kavanaugh noted that Justice Clarence Thomas referred to O’Connor’s line as a holding in his separate opinion concurring in part and dissenting from the court’s majority ruling in Grutter and that Justice Anthony Kennedy called it a pronouncement in his dissent. If the court’s conservatives agree, it could be a way for them to end affirmative action without, in their view, overturning a prior decision.

“Would it be overruling Grutter,” Justice Amy Coney Barrett asked during arguments, to say in five years “this is the end point, we’re at 25 years, no more race-consciousness in admissions?”

It’s extremely rare for the court to put any sort of time limit on a ruling. As Yale Law School Professor Justin Driver said in an op-ed for The New York Times, “sunset provisions are fundamentally the province of the legislature, not the judiciary.”

The closest example David Schraub, a Lewis & Clark Law School law professor, found was the court’s 1982 decision in Northern Pipeline v. Marathon when it limited the jurisdiction of bankruptcy courts. Schraub said the court stayed the decision for three months to give Congress time to come up with a legislative fix to avoid chaos.

The fact that higher education has relied on affirmative action for so long is an argument to let race conscious programs continue until at least 2028 to give schools time to adjust.

Amar said it would be unusual for conservatives to give O’Connor’s time period weight and then not honor it, but they may not end up viewing it as a true deadline.

“Oral argument is a time to float ideas, to be provocative,” he said. “There’s lot of cases where the questions asked at oral arguments never really find meaningful expression in the opinions that get written.”

New York University School of Law Professor Melissa Murray thinks the court is ready to do away with affirmative action now. She said Kavanaugh made the point that if they end it this term, it will effectively be sunsetting in 2028 because it will apply to the class of 2028.

“The wild cards are (Neil) Gorsuch, Barrett, and Kavanaugh and they didn’t seem to be really super interested in a more moderate position,” Murray said.

O’Connor did say racial classifications like the ones used in race conscious admissions policies are potentially dangerous and “must be limited in time.” She just underestimated how long it would take to no longer need them.

Even if the court doesn’t think O’Connor’s expectation is part of the precedent set in Grutter, Schraub said it should still serve as a cautionary tale for current and future members of the court: be careful in the predictions you make.

“The future is a strange place and we don’t live there yet,” he said. “There’s no guarantee that every year we’re going to become more racially tolerant than the year before.”

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