Sotomayor, J., dissenting
To the extent the Court suggests national security interests are “distinct,” those interests cannot explain the Court’s narrow exemption, as national security interests are also implicated at civilian universities. See infra, at 64–65. The Court also attempts to justify its carveout based on the fact that “[n]o military academy is a party to these cases.” Ante, at 22, n. 4. Yet the same can be said of many other institutions that are not parties here, including the religious universities supporting respondents, which the Court does not similarly exempt from its sweeping opinion. See Brief for Georgetown University et al. as Amici Curiae 18–29 (Georgetown Brief) (Catholic colleges and universities noting that they rely on the use of race in their holistic admissions to further not just their academic goals, but also their religious missions); see also Harvard II, 980 F. 3d, at 187, n. 24 (“[S]chools that consider race are diverse on numerous dimensions, including in terms of religious affiliation, location, size, and courses of study offered”). The Court’s carveout only highlights the arbitrariness of its decision and further proves that the Fourteenth Amendment does not categorically prohibit the use of race in college admissions.
The concurring opinions also agree that the Constitution tolerates some racial classifications. Justice Gorsuch agrees with the majority’s conclusion that racial classifications are constitutionally permissible if they advance a compelling interest in a narrowly tailored way. Ante, at 23. Justice Kavanaugh, too, agrees that the Constitution permits the use of race if it survives strict scrutiny. Ante, at 2.[1] Justice Thomas offers an “originalist defense of the
- ↑ Justice Kavanaugh agrees that the effects from the legacy of slavery and Jim Crow continue today, citing Justice Marshall’s opinion in Bakke. Ante, at 7 (citing 438 U. S., at 395–402). As explained above, Justice Marshall’s view was that Bakke covered only a portion of the Fourteenth Amendment’s sweeping reach, such that the Court’s higher education precedents must be expanded, not constricted. See 438 U. S.,
