Sorry, but I couldn't prevent myself from paraphrasing the immortal lines from The Treasure of Sierra Madre spoken by the Mexican Bandit leader as portrayed in the movie, above, in referring to another decision of the Supreme Court.  This one is about Affirmative Action, or rather the demise of that program or policy, as a result of the opinion in the case involving Students for Fair Admissions (as opposed it seems to Students for Unfair Admissions).

The Equal Protection Clause is at issue in the case.  That Clause was adopted just after the end of the Civil War, and it seems beyond dispute that it was adopted to prevent governments from engaging in racial discrimination of the sort which continued despite the defeat of the rebellion.  It seems curious, therefore, that it is claimed in this opinion that a policy intended to remediate the results of racial discrimination violates the Equal Protection Clause, which is intended to prevent it.

Such, though, is the result when we reverse course in this fashion, and declare that a policy which had been determined to serve a vital governmental interest doesn't really do so anymore, which is what I think is the position taken by the majority of the Court.  It is acknowledged, though in a somewhat grudging and dubious manner, that prior cases sanctioned the consideration of race in admission to institutions of what used to be called "higher learning" as serving such an interest.  But, one gathers from the opinion, it no longer does so, if it ever did.  Why?  Because there just isn't all that much racial discrimination going on now in higher education.  It is so limited at this time that the extraordinary decisions of the past no longer apply.

The fact that Affirmative Action existed always made some uncomfortable in light of the unambiguous language of the Equal Protection Clause.  Affirmative Action by its nature gave preference to certain students based on their race, and so favored them in consideration for admission to an institution, based on their race.  Clearly, if white applicants were given preference, it would constitute a violation of the law.  Why should that not be case if black or other applicants are given preference?

It was thought that it should not be the case because black and other applicants or minority status had been wronged, discriminated against, where others were favored.  That should be fairly clear, one would think.  If strict application of the Equal Protection Clause has the effect in certain circumstances of preventing its purpose from being accomplished, it isn't unreasonable to believe exceptions are appropriate in extraordinary circumstances.  

So, the majority doesn't maintain that Affirmative Action always violated the Equal Protection Clause.  Instead, it's reduced to claiming that Affirmative Action just isn't necessary anymore.  Curiously, it refers to language in prior opinions which spoke of the sunset of Affirmative Action.  It was estimated that 25 years should suffice to dissipate the harmful effects of discrimination due to race, and behold!  Twenty years later  discrimination is no longer a significant concern, and least in the admissions process.  We should congratulate ourselves.

Some disagree with the comforting conclusion of the majority.  And it does seem to be a decision which should have more support in a factual record than this opinion does, limited as it is to consideration of the policies of two institutions in particular.  

Most peculiar, I think, are statements made in the majority opinion which state that nobody doubts that applicants of a particular race may note in an essay submitted for consideration the impact that racial discrimination has had in their lives.  So, it seems race may be mentioned, at least in an essay, according to the Supremes.  Nonetheless, though, it cannot be considered.  What can be considered is how the applicant as an individual derived from that discrimination some sort of ability which would contribute to the university.  If an applicant is black, therefore, the majority thus asserts that while that fact may be significant in developing certain abilities and characteristics due to discrimination--may have indeed been necessary to that development--it cannot be considered in the admission process.  Instead, the individual, which apparently isn't black or isn't deemed black, is what is to be considered.  

It will be interesting to see how this bit of conjuring will play out.