Overturning Roe Changed Everything. Overturning Affirmative Action Did Not.

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By Ketrin Agustine

Overturning Roe Changed Everything. Overturning Affirmative Action Did Not.

What do the strikingly different public responses to two recent Supreme Court rulings, one on abortion, the other on affirmative action, suggest about the future prospects for the liberal agenda?

Last year’s Dobbs decision — overturning the longstanding precedent set by Roe v. Wade in 1973 — angered both moderate and liberal voters, providing crucial momentum for Democratic candidates in the 2022 midterm elections, as well as in elections earlier this month. The hostile reaction to Dobbs appears certain to be a key factor in 2024.

Since Dobbs, there have been seven abortion referendums, including in red states like Ohio, Kansas, Kentucky and Montana. Abortion rights won every time.

In contrast, the Supreme Court decision in June that ended race-based affirmative action in college admissions provoked a more modest outcry, and it played little, if any, role on Election Day 2023. As public interest fades, so too do the headlines and media attention generally.

There have been no referendums on affirmative action since the June decision, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. Six states held referendums on affirmative action before that ruling was issued, and five voted to prohibit it, including Michigan, Washington and California (twice). Colorado, the lone exception, voted in favor of affirmative action in 2008.

Do the dissimilar responses to the court decisions ending two key components of the liberal agenda, as it was originally conceived in the 1960s and 1970s, suggest that one of them — the granting of preferences to minorities in order to level differences in admissions outcomes — has run its course?

On the surface, the answer to that question is straightforward: Majorities of American voters support racial equality as a goal, but they oppose targets or quotas that grant preferential treatment to any specific group.

In an email, Neil Malhotra, a political economist at Stanford — one of the scholars who, on an ongoing basis, oversees polling on Supreme Court decisions for The New York Times — pointed out that “race-based affirmative action is extremely unpopular. Sixty-nine percent of the public agreed with the court’s decision in Students for Fair Admissions v. Harvard, including 58 percent of Democrats.”

On the other hand, Malhotra noted, “the majority of Americans did not want Roe overturned.”

The July 1-5 Economist/YouGov poll posed questions that go directly to the question of affirmative action in higher education.

“Do you think colleges should or should not be allowed to consider an applicant’s race, among other factors, when making decisions on admissions?”

The answer: 25 percent said they should allow racial preferences; 64 percent said they should not.

“Do you approve or disapprove of the Supreme Court’s decision on affirmative action, which ruled that colleges are not allowed to consider an applicant’s race when making decisions on admissions?”

Fifty-nine percent approved of the decision, including 46 percent who strongly approved. Twenty-seven percent disapproved, including 18 percent who strongly disapproved.

I asked William Galston, a senior fellow at Brookings, about the significance of the differing reactions to the abortion and affirmative action decisions, and he referred me to his July 2023 essay, “A Surprisingly Muted Reaction to the Supreme Court’s Decision on Affirmative Action”:

In a marked contrast to last year’s Dobbs decision by the Supreme Court overturning Roe v. Wade, the response to its recent decision prohibiting the use of race as a factor in college admissions has been remarkably muted. The overall reason is clear: while voters wanted to preserve access to abortion by a margin of roughly 20 percentage points, they were willing by the same margin to accept the end of affirmative action.

“To the surprise of many observers,” Galston writes, citing poll data, Black Americans “supported the court by 44 percent to 36 percent.”

Key groups of swing voters also backed the court’s decision by wide margins, Galston goes on to say: “Moderates by 56 percent to 23 percent, independents by 57 percent to 24 percent, and suburban voters, a key battleground in contemporary elections, by 59 percent to 30 percent.”

Sanford V. Levinson, a law professor at the University of Texas-Austin, wrote me by email that

There has always been a certain ambivalence on the part of many liberals regarding the actual implementation of affirmative action. I thought that it would ultimately be done in by the sheer collapse of the categories such as “white” or “Black,” and the impossibility of clearly defining who counts as “Hispanic” or “Asian.”

In contrast, Levinson continued,

Abortion has become more truly polarized as an issue, especially as the “pro-life” contingent has revealed its strong desire to ban all abortions. Moreover, it’s become immediately and obviously clear that the consequences of Dobbs are absolutely horrendous for many women in Texas, say, and that the “pro-life” contingent simply doesn’t seem to care about these consequences for actual people.

I asked Richard Pildes, a professor of constitutional law at N.Y.U., about the divergent responses to the two decisions, and he emailed his reply:

There are two reasons the public and political reaction differs so dramatically between the two decisions. The first is that in public opinion polling, affirmative action has always had significantly less than majority support.

Pildes pointed out that

in perhaps the most liberal state in the country, California, 57 percent of voters in 2020 voted to keep in place the state’s ban on affirmative action, even as Biden won the state overwhelmingly. Popular opinion on abortion runs the other way: a majority of the country supports the basic right of access to abortion, and we see strong majorities even in red states voting to support that right, as in recent votes in Ohio and Kansas.

Pildes’s second reason involves the advance preparation of the public for the decisions. In the case of affirmative action in college admissions,

It was widely expected the Supreme Court was going to ban it. That outcome did not come as a surprise; it had long been discounted into the assumptions of those who follow these issues closely.

In the case of the Dobbs, according to Pildes, “there was far more uncertainty in advance, even though the expectation was that the court would uphold Mississippi’s ban on most abortions after 15 weeks.”

While the court majority might have decided the case “on narrow grounds, without overruling Roe,” Pildes wrote, it took “the far more extreme path of overruling Roe altogether. That came as a stunning shock to many people and it was the first time the court had taken away a personal constitutional right.”

Nicholas Wu reported last month in Politico (in “Why Dems Aren’t Campaigning on Affirmative Action”) that some of the strongest proponents of affirmative action in the House do not see campaigning against the court decision as an effective strategy.

Representative Mark Takano, a California Democrat who believes affirmative action helped get him into Harvard, told Wu, “I don’t see it as a rallying point for Democrats.”

Representative Bobby Scott, a Virginia Democrat and the ranking Democrat on the Committee on Education and Workforce, told Wu, “This is going to cause some heartburn, but we need to campaign on the fact that we are opening opportunities to everybody, and we’ll do everything we can to maintain opportunities.”

“It’s difficult,” Scott added, “to bring back a strategy that the Supreme Court has directly ruled as unconstitutional.”

Nicholas Dias, a doctoral candidate in political science at the University of Pennsylvania, responded by email to my inquiry by noting that his “read of the existing data is that Americans care more about equality of opportunity than equality of outcome.”

Dias conducted a study asking Americans how they prioritize three social goals in setting policies concerning wealth: “ensuring wealth is determined by effort (i.e., deservingness); providing for basic needs (sufficiency); and ensuring wealth equality.”

He found that Republicans overwhelmingly give top priority to ensuring that wealth is determined by effort, at 70.5 percent, while Democrats give top priority, at 51.2 percent, to ensuring that everyone’s basic needs are met.

Dias noted that very few Democrats, Republicans or independents gave wealth equality top priority.

Dias sent me a 2021 paper, “Desert and Redistribution: Justice as a Remedy for, and Cause of, Economic Inequality,” in which Jacob S. Bower-Bir, a political scientist affiliated with Indiana University, makes the case that:

People tolerate grave inequalities if they think those inequalities are deserved. Indeed, if outcomes appear deserved, altering them constitutes an unjust act. Moreover, people who assign a significant role to personal responsibility in their definitions of economic desert oppose large-scale redistribution policies because government intervention makes it harder for people to (by their definition) deserve their economic station.

In short, Bower-Bir argues, “people must perceive inequality as undeserved to motivate a policy response, and the means of combating inequality must not undermine desert.”

In that context, Dias wrote in his email, it would be inaccurate to say that

policies designed to benefit minority constituencies have run their course. There’s plenty of evidence that members of these constituencies lack economic opportunities or cannot meet their needs. However, I think many Americans need to be convinced of that.

In a further elaboration of the affirmative action debate, three sociologists, Leslie McCall, Derek Burk and Marie Laperrière, and Jennifer Richeson, a psychologist at Yale, discuss public perceptions of inequality in their 2017 paper “Exposure to Rising Inequality Shapes Americans’ Opportunity Beliefs and Policy Support”:

Research across the social sciences repeatedly concludes that Americans are largely unconcerned about it. Considerable research has documented, for instance, the important role of psychological processes, such as system justification and American dream ideology, in engendering Americans’ relative insensitivity to economic inequality.

Challenging that research, the four scholars contend that when “American adults were exposed to information about rising economic inequality in the United States,” they demonstrated increased “skepticism regarding the opportunity structure in society. Exposure to rising economic inequality reliably increased beliefs about the importance of structural factors in getting ahead.” Receiving information on inequality “also increased support for government redistribution, as well as for business actors (i.e., major companies) to enhance economic opportunities in the labor market.”

The intricacies don’t end there.

In their April 2017 paper, “Why People Prefer Unequal Societies,” three professors of psychology, Christina Starmans, Mark Sheskin and Paul Bloom, write that

There is immense concern about economic inequality, both among the scholarly community and in the general public, and many insist that equality is an important social goal. However, when people are asked about the ideal distribution of wealth in their country, they actually prefer unequal societies.

How can these two seemingly contradictory findings be resolved?

The authors’ answer:

These two phenomena can be reconciled by noticing that, despite appearances to the contrary, there is no evidence that people are bothered by economic inequality itself. Rather, they are bothered by something that is often confounded with inequality: economic unfairness.

Human beings, Starmans, Sheskin and Bloom write, “naturally favor fair distributions, not equal ones, and that when fairness and equality clash, people prefer fair inequality over unfair equality.”

My interest in the subdued political response to the court’s affirmative action decision was prompted by a 2021 book, “The Dynamics of Public Opinion,” by four political scientists, Mary Layton Atkinson, James A. Stimson and Frank R. Baumgartner, all of the University of North Carolina, and K. Elizabeth Coggins of Colorado College.

The four scholars argue that there are three types of issues. The first two types are partisan issues (safety net spending, taxation, gun rights etc.) and nonpartisan issues, like the space program. Public opinion does not change much over time on these two types of issues, they write: “Aggregate opinion moves up and down (or, left and right) but fifty years later remains roughly where it started.”

Such stability is not the case with the third category:

These are social transformations affecting society in powerful ways, literally shifting the norms of cultural acceptability of a given issue position. These can be so powerful that they overwhelm the influence of any short-term partisan differences, driving substantial shifts in public opinion over time, all in the same direction.

Two factors drive these transformations:

Large swaths of the American public progressively adopting new, pro-equality positions on the issue, and the generational replacement of individuals with once-widespread but no-longer-majority anti-equality opinions — with younger individuals coming-of-age during a different time, and reflecting more progressive positions on these cultural shift issues.

Opinion on these mega issues, Atkinson and her co-authors argue, has been moving steadily leftward. “The overall trend is unmistakable,” they write: “The public becomes more liberal on these rights issues over time,” in what Atkinson and her co-authors describe as the shifting “equality mood.”

While trends like these would seem to lead to support for affirmative action, that is not the case. “We cannot treat belief in equality as a normative value as interchangeable with a pro-equality policy preference,” Atkinson and her co-authors write:

This is particularly true because many pro-equality policies emphasize equality of outcomes rather than equality of opportunity. And while equality of opportunity is the touchstone of a liberal society (i.e., all Americans are entitled to the pursuit of life, liberty and happiness), the right to equality of outcomes has not been equally embraced by Americans. Once equality of opportunity is significantly advanced, or de jure equality is established, public support for further government action focused on equalizing outcomes may not exist, or at least wanes significantly.

In other words, there has been a steady leftward movement on issues of equality when they are described as abstract principles, but much less so when the equality agenda is translated into specific policies, like busing or affirmative action.

Atkinson and her co-authors point specifically to growing support for women’s equality in both theory and in practice, reporting on an analysis of four questions posed by the General Social Survey from the mid-1970s to 2004:

When asked whether women should let men run the country and whether wives should put their husbands’ careers first, the policy responses look nearly identical to women’s ‘equality mood.’ The series trend in the liberal direction over time and reach a level of approximately 80 percent liberal responses by 2004.

But when asked whether it is better for women to tend the home and for men to work, and whether preschool children suffer if their mothers work, the responses are far less liberal and the slopes of the lines are less steep. While responses to these questions trend in the liberal direction during the 1970s and 1980s, by the mid-1990s the series flattens out with liberalism holding between 50 and 60 percent.

I asked Stimson to elaborate on this, and he emailed in reply:

We have long known that the mass public does not connect problem and solution in the way that policy analysts do. Thus, for example, most people would sincerely like to see a higher level of racial integration in schools, but the idea of putting their kids on a bus to achieve that objective is flatly rejected. I used to see that as hypocrisy. But I no longer do. I think the real issue is that they just do not make the connection between problem and solution. That is why affirmative action has such a troubled history. People are quite capable of supporting policy goals (e.g., racial balance in higher education) and rejecting the means.

Where does that leave the nation? Galston, in his Brooking essay, provided an answer:

In sum, the country’s half-century experiment with affirmative action failed to persuade a majority of Americans — or even a majority of those whom the policy was intended to benefit — that it was effective and appropriate. University employers — indeed the entire country — must now decide what to do next to advance the cause of equal opportunity for all, one of the nation’s most honored but never achieved principles.

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