The Fall of Affirmative Action

My guest on the show today is Justin Driver, the Robert R. Slaughter Professor of Law at Yale Law School and, more importantly, an old friend of mine.

Among his many recognitions, he was appointed by President Joseph Robinette Biden, Jr. to serve on the Presidential Commission on the Supreme Court of the United States, and is also a recipient of the American Society for Legal History’s William Nelson Cromwell Article Prize.

He’s the author of two books, the first of which was The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind, and the second of which is his new one, and the reason I had him on the show, The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education.

The first time I met Justin, knowing only that he was a law school professor and not what topics he worked on, I said to him, a propos of I’m not sure what, that it felt like the conversation on race in America was kind of passé. It didn’t feel, I said, like there was much going on in the intellectual space around race that was very interesting.

This was 2009 or 2010, not long before the death of Trayvon Martin and then the birth of BLM, so it was a comically anti-prophetic thing to say. It was also rather insensitive, given that Justin was a young academic planting his flag, in part, in that space. But I don’t think it was wrong, precisely. Given Obama’s election, there was certainly a ton of words that people were writing about race, and an older generation of important race-focused intellectuals—the Cornel West and Henry Louis Gates types— still working steadily. What there wasn’t, and hadn’t been for some years, was a figure able to bend the political intellectual discourse around his or her gravitational force on the topic of race.

It would soon be Ta-Nehisi Coates, of course, and then a whole explosion of important intellectuals writing about race, including Justin himself. And so it’s been my good fortune to have him as a conversation partner these last 15 or so years, and a pleasure to have the chance to talk to him in the context of his new book, which was a surprising reading experience for me, given that I thought, incorrectly, that I had such a good handle on the debate around affirmative action that even reading an expert on the topic might feel gratuitous.

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