Jonathan P. Baird

For any student of the U.S. Supreme Court, the last term was anything but uneventful. The decisions crashed down and there was none bigger than the Court’s new decision on affirmative action, ending race-conscious university admissions.

In Students for Fair Admissions Inc. v President of Fellows of Harvard College, the Court’s conservative majority reversed decades of precedent that had upheld race-conscious admissions as consistent with equal protection. Chief Justice Roberts found that the universities’ affirmative action programs “lack sufficiently focused and measurable objectives warranting the use of race”.

Roberts found all racial classifications of any kind were equally harmful. In effect, he said there was no difference between centuries of racial discrimination against black people and targeted race-conscious efforts to help black people.

The weakness of Roberts’ analysis and the lack of historical awareness are mind-boggling. Implicitly he is saying that discriminatory treatment based on race is no longer a big problem. It seems to me there is much American history Roberts doesn’t want to consider.

Because of the centrality of the equal protection clause of the 14th Amendment, the history around that is a great place to begin. Before the Civil War, enslavement was an entrenched and growing system. Four million black people were trapped in the most brutal and inhumane conditions.

The Civil War upended the old order but white supremacy remained dominant. There was still a powerful Southern white resistance to Black legal rights. The question remained: how to make Black freedom a reality?

I would submit the the Reconstruction Amendments, including the 14th with its equal protection clause, must be seen in this historical context. They were part of a plan for securing key results of the Civil War in the Constitution of the United States. As Justice Ketanji Brown Jackson has said, the framers of the 14th amendment were not striving for colorblindness, they were “trying to ensure that people who had been discriminated against were actually brought equal to everyone else in the society”.

From the end of the Civil War into Reconstruction, Congress adopted a number of social welfare programs whose benefits were almost exclusively limited to blacks. Most prominently, Congress established the Freedmen’s Bureau to provide formerly enslaved people with basic necessities and to oversee their condition and treatment within the Southern states. The Freedmen’s Bureau faced enormous opposition but functioned from 1865 to 1872.

Possibly its greatest accomplishment was in setting up and establishing black schools across the South. The Southern states had prohibited the education of black people and barred them from possessing reading material or writing instruments. In some Southern states, laws had authorized death as punishment for violation. By 1870, there were more than 1000 schools for freedmen in the South.

Affirmative action stands in the tradition of the Freedmen’s Bureau. However imperfectly it has functioned, the intent was about rectifying a historical injustice. The 14th Amendment was expressly intended to allow race-conscious legislation.

Chief Justice Roberts’ analysis is devoid of the real historical experience of black people in America. He has minimized the harms that have been done and continue to be done by white supremacy. Roberts is following in the long, dismal and undistinguished tradition of the many Supreme Court justices who have accommodated racism and failed to act against it.

In American history, there are the blatant racist judges like Chief Justice Roger Taney who brought us the Dred Scott decision and there are the subtler racists like Chief Justice William Rehnquist who made his mark as a Republican in Arizona challenging black and Hispanic voters’ right to vote before he ascended to the High Court. Roberts is certainly closer to the Rehnquist model.

After the Civil War, unchecked murders and lynchings of black people were all too common. The Supreme Court disgraced itself in a slew of cases like United States v Cruikshank. The Court in that 1876 case failed to protect black citizens and exonerated violators of their civil rights. The Court threw out the convictions of white racists who killed approximately 150 African-Americans in Colfax, Louisiana.

The Court’s ruling opened the door to Klan night riders and white terrorists. Racial fascism dominated the South for another 75 years and the Supreme Court did not say boo. Progress on civil rights largely stalled until the civil rights movement came along and achieved some genuine progress. However, that progress should hardly be exaggerated. Any honest observer knows the United States has been backsliding for some time now back toward re-segregation, reversing the gains of Brown v Board of Education.

My lawyer friend Robin called the Supreme Court’s affirmative action decision the end of the Second Reconstruction. As Justice Sotomayor wrote in her dissent:

“Ignoring race will not equalize a society that is racially unequal. What was true in the 1860’s and again in 1954 is true today. Equality requires acknowledgement of inequality.”

As seems characteristic of this Supreme Court majority, they are anxious to reach a result. Stare decisis is no obstacle. Their decision did not engage the trial court record. The trial court had found the universities didn’t discriminate against Asian-Americans.

This is another one of those cases with a bogus plaintiff. The supposedly discriminated against Asian-Americans were MIA. Right wing activist Edward Blum, the plaintiff’s man behind the scenes, was the real moving party against affirmative action. As a plaintiff shopper, he had been gunning for affirmative action for years and he finally got the Court he desired.

I think Justice Jackson put it best:

“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colorblindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life.”

One weird wrinkle that undercut the decision was the majority making an affirmative action exception for military.academies. As Justice Jackson also said it is like blacks and other underrepresented minorities must be prepared “for success in the bunker and not the boardroom”.

Tellingly, the Court said nothing about preferential treatment for legacy admissions. This far more pervasive form of elite affirmative action received no mention in Roberts’ opinion.

So much more can be done to make college admissions more equitable, affordable and accessible. Cancelling student debt, allowing much more access to free public college, utilizing affirmative action based on socioeconomic disadvantage and ending legacy and donor-based admissions are all doable steps. The Supreme Court, with its history of ruling for the wealthy few and against the interests of working people, must not have the last word.