An Evaluation of Justice Jackson’s Dissenting Argument in SFFA v. Harvard
Justice Jackson’s dissenting case in Students for Fair Admissions, Inc. v. Harvard is an interesting argument that combines backward-thinking and forward-thinking: the former in that it looks to the past, the latter because it points to the future. But the argument is unpersuasive for several reasons. I want to emphasize one: the forward-looking aspects of her argument are only as strong as her uncritical utilitarian assumption.
Jackson rightly emphasizes the moral aspects of the matter, though the legal dimension is important in its respects, as are the historical details she substantively discusses. Her contention involves the utilitarian assumption that discrimination based on race, even if only part of a holistic admissions process, is morally justified by the benefits it generates.[1] She opens and closes her article with versions of this claim. In the introduction, she informs readers that she intends “to expound upon the universal benefits of considering race in this context” and claims that race-based admissions decisions are “for the benefit of us all.” (p. 2) Near the end of her piece, she writes: “Universal benefits ensue from holistic admissions programs that allow consideration of all factors material to merit (including race), and that thereby facilitate diverse student populations.”[2] (p. 24)
Jackson’s argument only skims the surface of significant philosophical issues. There is a problem that should not be ignored. Utilitarianism is open to strong objections. One who uses utilitarian argumentation in a major ruling such as SFFA v. Harvard thus ought to provide a supporting case for utilitarianism rather than merely assuming it.* I will note below one objection to utilitarianism.[3] But first, a brief definition is in order.
Roughly, utilitarianism is the theory in moral philosophy which holds that the consequences of an act make that act morally right (or wrong) by virtue of the fact that those results constitute the greatest overall benefit for the greatest number of people (or fail to do so) compared to whatever results would have obtained had the agent chosen otherwise. Hence, for any morally relevant decision one makes, one should select the option that will generate the most benefit for the most people (act utilitarianism) or at least opt per a rule that, if followed, would lead to the best consequences for as many as possible (rule utilitarianism). In short, the end justifies or condemns the means used to achieve it. Therefore, one ought to do what is required to bring about the greatest benefit for the greatest number; attaining such an end justifies whatever action one performed to generate it.
Now for the objection. I have been telling my philosophy students for years that if you believe in the existence of human rights that are objective, universal, and inviolable, then you probably are not a utilitarian, or at least not a consistent one.[4] Why? Recall that if you are a utilitarian, you believe that one ought to point to the future and do what is required to generate the best results for the most people. As such, the utilitarian seems committed to the view that if harming individuals or violating their (supposed) moral rights produces the best outcome, one is morally obligated to do so. Yet this claim cuts against the non-consequentialist intuitions of very many people who hold that human rights should not be violated.[5]
Jackson’s argument cuts in precisely this way, thereby raising serious doubt for the myriad of non-consequentialists among us. Her dissenting opinion indicates that she believes race-based preferential treatment in university admissions processes is justified by the supposed benefits that result from it. (I grant that she makes other significant points in the article, but I am focusing here on her utilitarian assumption.) From the perspective of the non-consequentialist reader, her position is not “Let justice be done though the heavens fall” but rather “Let injustice be done so the heavens rise.” She overlooks the counterargument that since race-based discrimination violates the moral right not to be mistreated because of factors such as race, sex, etc., such discrimination is wrong and ought to be abolished. Jackson’s failure to recognize and respond to this counterargument, conjoined with her unsupported assumption of utilitarianism, weakens her case.
[1] President Biden offered a similar, though less substantive, argument in his televised response to the SCOTUS decision, claiming that race-based preferential treatment in university admissions leads to the end of greater diversity. He said that such diversity “makes the nation better.” In other words, his position is that the end of diversity justifies the means of race-based discrimination.
[2] It should be noted that one might read Jackson’s claim as, in some sense, an agreement with Chief Justice Roberts’ assertion that a university may consider race in its deliberation if viewed as a factor pertinent to the character of the applicant. Roberts writes: “A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination... In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.” (p. 40)
[3] If the reader is interested in the other objections, researching them online or in a moral philosophy textbook is not infeasible.
[4] Harvard philosopher Michael Sandel makes a similar point in Justice (p. 103, Ch. 5, “Immanuel Kant”). I noted this point to my students long before reading Sandel’s book.
[5] For the purposes of this post, non-consequentialism is the view in moral philosophy that denies the utilitarian/consequentialist claim that an act is morally justified or condemned by its consequences.
* To be consistent, the same point can be made, mutatis mutandis, about the use of non-consequentialist arguments in a major ruling. For example, Chief Justice Roberts’ majority opinion contains Kant-esque arguments for which he provides no philosophical support, though he does offer legal support via references to the equal protection clause of the 14th Amendment, etc.