Amy Coney Barrett’s Modest Way to End Racial Preferences

But the justices can put a stop to racial preferences without reaching the constitutional question. Universities are required to abide by Title VI of the Civil Rights Act of 1964, which is unambiguous about preferential admission on the basis of race. The provision reads simply: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

There is no indication in its text that Title VI incorporates the Equal Protection Clause. It could have been written to track the Constitution’s language, but it wasn’t. As Justice

John Paul Stevens

noted in his partial dissent from University of California v. Bakke (1978), the legislative history also indicates a clear intent to prohibit all discrimination on the basis of race.

Nonetheless, the majority in Grutter read the statute as if it applied the Equal Protection Clause. Traditionally, courts read statutes to avoid hard constitutional questions if possible. Grutter did the opposite; it entangled Title VI unnecessarily with the Constitution. Courts also generally interpret clear statutory language to mean what it says. Grutter did the opposite here as well, replacing clear and precise language with vague and ambiguous language not in the statute.

The simple course would be for the court to revive the plain reading of Title VI as prohibiting all racial and ethnic preferences in university admissions, regardless of whether they would be constitutional if Congress changed the law to authorize them. But the jurisprudential issue is complicated, because the court has generally applied a strong version of stare decisis, or respect for precedent, to its previous interpretations of statutes. Perhaps that’s why Justice Stevens joined the majority in Grutter after taking a different view a quarter-century earlier.

In a 2005 article, a legal theorist argued that courts should rethink how they apply stare decisis to cases interpreting statutes. The author was Prof.

Amy Coney Barrett

of Notre Dame Law School, now Justice Barrett.

Two justifications are typically offered for strong statutory stare decisis. The first is that by failing to overrule a prior statutory precedent, Congress effectively endorsed it. But that’s a fiction. Congressional silence has many causes other than approval, including inertia. Prof. Barrett observed that giving such weight to congressional silence offends the Constitution, which authorizes Congress to change our rights only by enacting a new law, not by inaction.

The second is that when the court has resolved a difficult issue of law, judicial restraint calls for returning to Congress the underlying policy decision. But as Prof. Barrett also notes, that rationale depends on the statute’s being ambiguous in the first place. If the statute is clear and a prior court’s interpretation was wrong, as in this case, it is judicial abdication for the justices not to correct an issue of law. Legal interpretation is their responsibility, not Congress’s.

To be sure, the court may be hesitant to ditch wholesale its precedent on the status of statutory precedent. But it could distinguish prior cases of strong stare decisis by noting that here the wrong statutory interpretation required it to resolve a constitutional issue. That result itself harmed judicial restraint, because it required the court to render an unnecessary decision about a constitutional question—in this case the scope of discrimination, if any, permitted by the Equal Protection Clause—that lawmakers can undo only by amending the Constitution.

This method of deciding the case is also more in keeping with the court’s general jurisprudence. It follows the text of the law. It defers to the political branches until and unless the Constitution compels it to do otherwise. Dobbs v. Jackson Women’s Health Organization returned decisions about regulating abortion to the states. West Virginia v. EPA left it up to Congress whether to give the Environmental Protection Agency the sweeping power to force power plants to change their method of generation. The Supreme Court can eliminate racial preference throughout the nation simply by doing what Congress six decades ago unequivocally ordered it to do.

Mr. McGinnis is a law professor at Northwestern University.