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The Supreme Court Could Overturn Another Major Precedent. This Time, Americans Might Agree.

The Supreme Court is poised to upend decades of precedent on affirmative action. This Monday, the justices will hear two cases challenging race-conscious admissions policies at Harvard University and the University of North Carolina. The universities use race as one of many factors when deciding which applicants to accept — a practice that has been affirmed multiple times by the Supreme Court, including in a 2003 case where the justices ruled that ensuring racial diversity in higher education is important enough to justify the limited use of race in college admissions. 

Now, just months after the Supreme Court upended a decades-old precedent on abortion rights, the precedent on affirmative action is in peril.

Although public opinion on abortion is complex, Americans mostly did not want the Supreme Court to overturn Roe v. Wade and end the constitutional right to abortion. But a ruling limiting or ending affirmative action in higher education — though it would have a huge impact on college admissions — is less likely to draw public outrage. That’s because affirmative action is unpopular, even though Americans do want there to be diversity in higher education.

For example, a Washington Post/Schar School poll conducted Oct. 7-10 found that near-identical shares of Americans supported a Supreme Court ruling “banning colleges and universities from considering a student’s race and ethnicity when making decisions about student admissions” (63 percent), and thought programs that promote racial diversity in higher education are a good thing (64 percent). This is a great example of one of the central tensions in how Americans think about race-conscious admissions: Many people are uncomfortable with the concept of singling out racial minorities for special treatment if it means other students will have to meet a higher standard, even though they also want universities to have racially diverse student bodies.

Americans’ ambivalence about affirmative action is strong enough that a small tweak in question wording can result in a very different result. A Pew Research Center poll conducted in 2017 found that a sizable majority (71 percent) of Americans said that “affirmative action programs designed to increase the number of black and minority students on college campuses” are a good thing. Of course, this number might have changed over the past few years, but it suggests that reminding respondents about the aims of affirmative action programs — rather than simply telling them how race-conscious admissions works, as the Washington Post/Schar School poll did — may change the way people think about the concept.

A YouGov poll conducted in April tested this theory and found that framing does matter. When respondents were asked whether they supported or opposed “an affirmative action program for higher education that increases the share of Black and Hispanic students at selective institutions in the United States,” there wasn’t a clear consensus: Thirty-seven percent supported the programs, 34 percent opposed them and 29 percent said they weren’t sure. But a much larger majority (68 percent) said that race should not “be considered when evaluating [a student’s] admission to college,” and a plurality (46 percent) agreed that “[q]ualified minorities” should not be given “special preferences in higher education.”

The Washington Post/Schar School poll also found that larger shares of Americans thought that white students (62 percent) and Asian students (66 percent) have “a fair chance” of getting into a good college, compared with the shares who thought the same about Black students (43 percent) and Hispanic and Latino students (44 percent). Despite this consensus that discrimination exists in college admissions, Americans are much less likely to favor affirmative action when it’s framed as a zero-sum game. (This feeling that the playing field should be level extends beyond affirmative action: The Washington Post/Schar School poll found Americans were overwhelmingly likely to oppose preferential treatment for applicants whose parents went to the same school.)

YouGov also conducted an experiment as part of their April poll, asking half the sample what they thought about an affirmative action program that would “increase the share of Black and Hispanic students,” while asking the other half what they thought about an affirmative action program that would “decrease the share of Asian and white students.” Respondents who said they supported “affirmative action in college admissions” (an earlier question in the poll) were much more likely to say they supported a program increasing the share of Black and Hispanic students (70 percent) than a program decreasing the share of Asian and white students (37 percent), indicating that even those in favor of race-conscious admissions in theory don’t like the idea of giving some students a boost at other racial and ethnic groups’ expense.

So what does all of this mean for the Supreme Court? The two cases facing the justices raise slightly different issues: Harvard is accused of unconstitutionally discriminating against Asian American applicants through its race-conscious process, while the challenge against UNC-Chapel Hill argues that considering race in admissions violates civil rights law and the Constitution. As the cases have unfolded, universities across the country have weighed in, many saying that race-conscious admissions actually are the best way to ensure a racially diverse student body — and that without it, there will be fewer minority students at selective schools. 

Even though the justices ruled only six years ago that the University of Texas could consider race in its admissions process, the court is much more conservative now, and it seems likely that the justices will limit how universities can use race as a factor for admissions, or ban it entirely. And if that happens, many Americans may think that’s the right outcome — particularly if the justices say they’re acting to protect Asian American students from discrimination.

Other polling bites

  • Early voting for the midterm elections is underway in some states. According to a recently released Gallup poll, which was conducted in July, a heavy majority of Americans (78 percent) favored early-voting options, although there is a partisan split, with early voting supported by 95 percent of Democrats but only 60 percent of Republicans. Americans of color (84 percent) were also more likely than white Americans (76 percent) to agree. Furthermore, the poll found a wide gap along racial lines related to absentee ballots: While three-quarters (75 percent) of Americans of color supported sending absentee ballots to all eligible voters, just over half of white Americans (53 percent) endorsed the same.
  • An LX News/YouGov poll conducted Oct. 12-14 found that roughly half of Americans (49 percent) believed there will be at least some voter fraud in the midterms. That number jumped to 71 percent among Republicans and 78 percent among those who said they voted for Trump in 2020. An equal share of both groups (34 percent) believed fraud could be rampant enough to impact control of Congress. Specifically, a large share of 2020 Trump voters were at least somewhat concerned that illegal ballots will be cast by people lying about citizenship status (84 percent), trying to vote more than once (81 percent) or using a fake name (80 percent).
  • A plurality of Americans (44 percent) said that supporting Iranians demonstrating for women’s rights was more important than reentering a nuclear deal with the nation, per an Oct. 5-7 TIPP poll. Just 24 percent expressed the opposite, with an additional 31 percent of Americans not sure. The prioritization of civil liberties over nuclear treaties held true regardless of political affiliation, with 50 percent of Democrats, 43 percent of independents and 40 percent of Republicans saying supporting women’s rights protestors was more important. This suggests that Americans are paying attention to the ongoing protests in Iran after Mahsa Amini, a 22-year-old woman, died in the custody of the country’s “morality police.” Prior to that event, TIPP polling from July shows that a majority of Americans (55 percent) wanted the Biden administration to make a nuclear deal with Iran.
  • Americans are divided over which country poses the greatest national security threat to the United States, according to a YouGov poll conducted on Oct. 25. Two-thirds were roughly split between choosing China (34 percent) and Russia (30 percent), while the rest were either not sure (16 percent) or divvied up among less popular choices, like North Korea (8 percent), Iran (4 percent) and Afghanistan (3 percent). But there is also a partisan division at play: Half of Republicans said China was the greatest national security threat, while 43 percent of Democrats named Russia.

Biden approval

According to FiveThirtyEight’s presidential approval tracker,1 42.3 percent of Americans approve of the job Biden is doing as president, while 53.0 percent disapprove (a net approval rating of -10.7 points). At this time last week, 42.0 percent approved and 53.4 percent disapproved (a net approval rating of -11.4 points). One month ago, Biden had an approval rating of 42.3 percent and a disapproval rating of 53.3 percent, for a net approval rating of -11.0 points.

Generic ballot

In our average of polls of the generic congressional ballot,2 Republicans currently lead Democrats by 0.6 points (45.6 percent to 45.0 percent). A week ago, Republicans led by 0.1 point (45.0 percent to 44.9 percent). At this time last month, voters preferred Democrats by 1.4 points (45.0 percent to 43.5 percent).

Will Arizona’s abortion laws go back to the 1800s?| FiveThirtyEight


  1. As of Thursday at 5 p.m. Eastern.

  2. As of Thursday at 5 p.m. Eastern.

Amelia Thomson-DeVeaux is a senior editor and senior reporter for FiveThirtyEight.

Zoha Qamar is a former ABC News fellow.


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