2023 Supreme Court Rulings: Affirmative Action
In a case that hits hard despite the fact that it was widely anticipated, the Supreme Court that conservatives used to claim would show judicial restraint, respect precedent, and respect the legislative branch and refrain from legislating from the bench, threw out all semblance of judicial restraint, ignored decades of precedent, and convened themselves as a legislature to write some new laws. In an action Justice Brown-Jackson characterized as “let them eat cake obliviousness,” the Court voted 6-3 to ban the use of affirmative action in higher education
Yes, the use of affirmative action as a tool to achieve diversity has been remarkably successful. No, it has not resulted in “unqualified students being admitted.” It’s an additional factor admissions officer can consider, like participating in debate, or a serious commitment to community service, to get a more interesting and diverse student body.
Some on the right are arguing that “justice should be color blind” or “everyone should be treated equally” or “decisions should be made on merit.” You cannot be polite in the face of such obliviousness – or disingenuousness. The simple fact is, just as 3/4s of federal housing aid goes to the middle and upper classes, many of whom complain about working single mothers who are getting far less in federal aid than they are, so too, there has always been an affirmative action program which white people don’t complain about and which goes on unaffected after today. That’s the well-established affirmative action program for the white middle class: legacy admissions, scholarships in crew, tennis, golf, chess, etc., Division III “sports” preferences/ scholarships, and an otherwise nearly endless list.
The most casual look at K-12 education highlights the illusion of “color blind” evaluation of students. There is a vast, racially-based disparity between resources available to different schools, largely based on income and racial factors. In Pennsylvania, the state courts recently ruled that the inequality in school funding violates the Pennsylvania Constitution.
My first day as an ESL teacher, I began to be enlightened about how the system works. My predecessor, who was packing up to retire, explained that our school had plenty of struggling families, but not the poorest of the poor. The school district had opened a new high school a few years ago and the poorest of our neighborhoods had been transferred to the new school, which was a perpetually failing school. And then I started to notice things: contrary to usual practice, they didn’t force feed a strong administration; enthusiastic, skilled teachers; extra resources; and extra loads of magnet programs on that challenged school. Instead, they always staffed the school with an inexperienced principal; offered no incentives to attract and keep the best teachers; and starved the school for resources. The last thing I needed to know was when I found out there was a middle-class neighborhood in the middle of the district that couldn’t be gerrymandered out – and that it was common knowledge that any student from this neighborhood who applied for a specialty program at another school would be admitted. In essence, this school was created to be a failing school. Like Dr. Traven’s description of the Schwarzenegger and DeVito characters in “Twins,’ “All the purity and strength went into Julius. All the crap that was left over went into what you see in the mirror every morning.”
That’s the “equal” educational opportunity. Students from this school won’t have a Key Club line on their resume, they won’t have been a member of a robotics team that went to the national championships. They won’t have benefit of a strong counselor to guide them through course selection, SAT preps, college selection, and the application process. But thanks to the Supreme Court, they’ll be treated “equally.”
This decision continues a long Supreme Court tradition of reactionary judicial activism. The conservative reaction started with the reformist Warren Court and its landmark civil rights and accused rights decisions. The complaint was “judicial activism” and the solution advocated for years was “judicial restraint.” Then Antonin Scalia – a profoundly mediocre and lazy man who had no business on any Federal court but had a totally undeserved reputation for intelligence because he spoke ponderously and used big words — invented or claimed to apply other doctrines: “original intent” and “plain meaning of the text.” Always hanging around are two other principles: respect for precedent and “don’t legislate from the bench.”
Not a single one of the six-member majority believes one word of any of that. “Precedent” was a platitude that three Trump-appointed justices who plainly were eager to repeal Roe v. Wade used to lie to gullible senators who would have voted against their confirmation if they had told the truth.
Judicial restraint – The idea here is the Court has always decided any matter on the narrowest possible grounds and does anything to avoid reaching a Constitutional issue. This Court has ignored this tradition, openly hunting for cases that will let them overrule precedent. In the most notorious, Citizens United, the Court literally instructed the plaintiff what complaint they should make and what grounds they should argue. Quite literally, the entire majority would have been forced to recuse if this court had a functioning integrity system.
Interpreting the text. The most egregious case of ignoring the plain meaning of the text was the Second Amendment case Heller. Scalia, who was lionized for his commanding intellect by the Washington news media, ignored the plain meaning of the text (“a well-regulated militia”) and invented an individual right to own arms just because …. That’s what he wanted to do.
In the summer of 2022, the Court descended into pure sophistry when it bent founders’ language and the original intent doctrine to the point that it could be used to justify one thing … or the exact opposite.
The Founders didn't mention semi-automatic rifles, so we can’t regulate them.
In a different case, the Founders didn’t mention abortion, so we can’t allow it.
Let legislature legislate – Shelby, Dobbs, Hobby Lobby, and Citizens United were all examples of the court writing new legislation, not merely commenting on existing legislation.
Respect for precedent – The justices ignored precedent in Citizens United, Heller, Shelby, Dobbs, and the recent affirmative action decision.
The worst Supreme Court in our history isn’t even pretending there’s a principle that guides their deliberations. It’s pure reactionary power politics, complete with a seat stolen from the Democrats and dozens of lower court confirmations only available to Trump because of McConnell’s obstructions of Obama appointments. Biden has done an outstanding job of appointing district and circuit court judges, reversing the Republican lead in these areas and giving Democrats the leadership at both the district and circuit levels. But it is evident that the Supreme Court is and will remain a toxic waste dump perhaps for decades. This Supreme Court clearly has no respect for precedent, for tradition, for public opinion, for ethical rules, or for common decency.
Biden’s respect for process is admirable. His efforts to depoliticize DOJ could well save that agency. But the sakes are too high with the Supreme Court. The constitutional system will be unrecognizable in five years if this court continues on this path. The Democrats have raised consciousness about the politicians’ threat to democracy and they need to make a similar issue of the Supreme Court.