If Andrew Johnson and Bull Connor were alive today, they’d be mighty happy with this Supreme Court. It might be their ghosts, along with their ideological chums from Roger Taney, architect of the infamous Dred Scott case, to Strom Thurmond, George Wallace and the other Southern Dixiecrats, wearing those Court robes today.
Those defenders of slavery and segregation would be thrilled with the efforts of Roberts and his cabal to rewrite the history of the 14th Amendment’s “equal protection of the laws” clause of the Reconstruction era that is the core of American democracy. And their frontal assault on the goal of a multi-racial society premised on diversity, equity, and inclusion that is so feared by the ghosts of the plantation class ideologues and their descendants longing for a return to those days past.
Chief Justice John Roberts’ labored efforts to pretend his court is not merely a far-right partisan cabal crashed aground in a parade of extremist court rulings in the waning days of the 2022-2023 court term.
In the cynical hands of Roberts and his cronies on the court, the original intent of the 14th has been perverted to instead buttress and protect white supremacy and white privilege. And to strike down reforms designed to expand rights and protections for the marginalized and disadvantaged.
The debauched majority opinion striking down affirmative action, defines the “core purpose” of the Equal Protection Clause of the 14th as “do[ing] away with all governmentally imposed discrimination based on race,” by which Roberts argues means historically disadvantaged Black and Brown students should not “be admitted (to colleges and universities) in greater numbers than they otherwise would have been.”
That would surely be news to the authors of the 14th and its precursor, the 1866 Civil Rights Act, who specifically crafted the bill and amendment to reverse the horrors of slavery and the pseudo-scientific racism which buttressed it in the face of virulent racism and increasingly violent repression by the former Confederate soldiers abetted by the white politicians aligned with them.
As Eric Foner, one of the most prominent historians of Reconstruction, wrote in his seminal book “The Second Founding,” President Johnson vetoed the 1866 Act (overridden by Congress) as made to operate in favor of the colored and against the white race” and opponents of the 14th directly attacked it as a violation of white supremacy.
“[E]qual protection of the laws is not achieved through indiscriminate imposition of inequalities,” Roberts pontificated, seeking to obscure and re-write the 14th’s “equal protection of the laws” clause as meant to advocate a colorblind society that as Justice Sonia Sotomayor wrote in her forceful dissent “is not, and has never been, colorblind.”
As with his mugging on the Voting Rights Act, the subtext of his evisceration of affirmative action is infused with his presumption that the racist sins of the past are now past.
Roberts’ interpretation of the 14th, noted Sonia Sotomayor, is not only “contrary to precedent and the entire teachings of our history, but is also grounded in the illusion that racial inequality was a problem of a different generation. Entrenched racial inequality remains a reality today.”
Or as Justice Ketanji Brown-Jackson in her dissent, noted in beautiful simplicity, “history speaks. In some form, it can be heard forever. The race-based gaps that first developed centuries ago are echoes from the past that still exist today. By all accounts, they are still stark.”
The Court majority, wrote Sotomayor in her far reaching dissent, “subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society… Reduced to its simplest terms, the Court’s conclusion is that an increase in the representation of racial minorities at institutions of higher learning that were historically reserved for white Americans is an unfair and repugnant outcome that offends the Equal Protection Clause”.
Or as Leah Litman, one of three constitutional law professors who provide colorful takedowns on the Court in their entertaining podcast Strict Scrutiny put it, “there’s almost nothing more that the Republican appointed justices love to do than to deny doing what it is in fact they are doing.”
The veil of Roberts’ deception is easily ripped off by glaring exemptions in the majority opinion, another telling case described by Sotomayor, and a companion Court ruling the next day.
First, there is the court’s transparent acceptance of preferential admission policy for legacy applicants and the offspring of wealthy donors, which ensures special status rather than the “merit” of a supposed colorblind society. Of white Harvard students, 43 percent are either legacies, children of faculty, kin of donors or a recruited athlete who would not have gotten in if not for special treatment that the Court does not challenge.
Second, not well hidden in a footnote, Roberts exempts military academies, allowing them to continue to use race-based admissions “in light of the potentially distinct interests that military academies may present.” In other words, the highly diverse military and the need for a diverse officer corps.
“During the Vietnam War,” Sotomayor noted, lack of racial diversity “threatened the integrity and performance of the Nation’s military” because it fueled “perceptions of racial/ethnic minorities serving as ‘cannon fodder’ for white military leaders.” Or as Jackson put it, “the Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom.”
To Sotomayor, “the majority recognizes the compelling need for diversity in the military and
the national security implications at stake but it ends race-conscious college admissions at civilian universities implicating those interests anyway.” Diversity is equally essential everywhere in a society that is growing more multi-national, more multi-cultural by the day no matter how hard the Tucker Carlson’s and his ilk, try to stop it.
“Race-conscious college admissions,” Sotomayor added, are, for example, “critical for providing equitable and effective public services. State and local governments require public servants educated in diverse environments who can “identify, understand, and respond to perspectives” in “our increasingly diverse communities.”
Third, Sotomayor cited another case where the Court majority was perfectly comfortable with a race-based exception where “Mexican appearance” could be “a relevant factor” to justify a stop “at the border.” The Court, she wrote, thus facilitated racial profiling of Latinos as a law enforcement tool and did not adopt a race-blind rule. The Court later extended this reasoning to border patrol agents selectively referring motorists for secondary inspection at a checkpoint, concluding that “even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry, [there is] no constitutional violation.”
And then came the subsequent ruling the next day ruling 6-3 on partisan lines if a Colorado web designer could hypothetically, as Strict Scrutinynoted, refuse to design hypothetical wedding websites for hypothetical same-sex couples despite a state law that forbids discrimination against gay people.
“For the first time in history”, Sotomayor wrote in another powerful dissent, “granted a business open to the public a Constitutional right to refuse to serve members of a protected class.”
“The owner who hangs a shingle and offers her services to the public cannot retreat from the promise of open service. It is to convey the promise of a free and open society and then take the prize away from the despised few.”
Sotomayor aptly recounts the long struggle to achieve a “public accommodations law” that guarantees to every person the full and equal enjoyment of places of public accommodation without unjust discrimination. The civil rights freedom movement won enactment of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990 which prohibit discrimination by places of public accommodation on the basis of race, color, religion, national origin, or disability – laws premised, one might add, on the equal protection clause of the 14th Amendment that the Roberts Court majority is so determined to subvert.
Sotomayor and Jackson both emphasized the need for continued popular struggle to win the reforms needed to counter the rightwing assaults.
In a master class history that recounts the pervasive legacy of slavery, segregation and continuing structural racism, Jackson reminded all of us that “the justification for admissions programs that account for race is inseparable from the race-linked gaps in health, wealth, and well-being that still exist in our society (the closure of which today’s decision will forestall).”
From economic opportunity, savings and income to housing to education to the criminal justice system, the examples continue to rip through every fabric of our society. Those are reasons that historically disadvantaged Black and Latino students are disproportionately harmed by the Court’s overturning of President Biden’s plan to cancel federal student debt as well.
One of the most insidious consequences Jackson highlights, is the most basic – health, life and death. Citing the success of the University of North Carolina (UNC) policy outlawed by the court, Jackson wrote: “Beyond campus, the diversity that UNC pursues for the betterment of its students and society is not a trendy slogan. It saves lives.
“For marginalized communities in North Carolina,” she continued, “it is critically important that UNC and other area institutions produce highly educated professionals of color. Research shows that Black physicians are more likely to accurately assess Black patients’ pain tolerance and treat them accordingly (including, for example, prescribing them appropriate amounts of pain medication).
“For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die. Studies also confirm what common sense counsels: Closing wealth disparities through programs like UNC’s – which, beyond diversifying the medical profession, open doors to every sort of opportunity – helps address the aforementioned health disparities (in the long run) as well,” Jackson wrote.
Sotomayor cited briefs submitted by the Southern Governors that increasing the number of students from underrepresented backgrounds who join “the ranks of medical professionals” improves “healthcare access and health outcomes in medically underserved communities.” And another from the Association of American Medical Colleges that all physicians become better practitioners when they learn in a racially diverse environment.
Other medical professionals have issued similar warnings. Lee Jones, dean of medical education at the Georgetown University School of Medicine, observed that the ruling will harm efforts to mitigate the country’s massive racial and health disparities, adding that white residents in Washington, D.C., live more than 15 years more than Black residents.
After California banned affirmative action in the notorious Prop. 209 initiative in 1996, the number of Black and Latino students in colleges and medical schools plummeted. At the University of California San Diego, the entering medical school class in 1997 did not include a single Black student.
Health and Human Services Secretary Xavier Becerra noted that people of color had been excluded from attending medical school and joining medical organizations for generations. “This ruling will make it even more difficult for the nation’s colleges and universities to help create future health experts and workers that reflect” the nation’s diversity. “We need more health workers, especially those who look like and share the experiences of the people they serve,” he said.
“It is important to have a representative, culturally and linguistically competent nursing workforce to provide the best care for our communities, and yet only 6.3 percent of RNs are Black and just 6.9 percent are Latinx, despite Black and Latinx people respectively accounting for 13.6 percent and 19.1 percent of the total U.S. population,” said National Nurses United. “We need to diversify the nursing workforce and thus increase, not cut back, educational opportunities for people of color who want to be nurses.”
Fig leaf efforts by Roberts to shroud his racist intent that universities can, as Sotomayor put it, “in some situations, consider race in application essays is nothing but an attempt to put lipstick on a pig. The Court’s opinion circumscribes universities’ ability to consider race in any form by meticulously gutting respondents’ asserted diversity interests. Yet, because the Court cannot escape the inevitable truth that race matters in students’ lives, it announces a false promise to save face and appear attuned to reality. No one is fooled.”
For everyone appalled by the ghosts of Andrew Johnson, Bull Connors et al who sit on the court bench today, it is long past time to revisit proposals for essential court reform, from term limits of the lifetime appointments to expansion of the court to reflect the political reality of the nation.
“Despite the Court’s unjustified exercise of power the opinion today will serve only to highlight the Court’s own impotence in the face of an America whose cries for equality resound, Sotomayor concluded. “As has been the case before in the history of American democracy, concluded, quoting Dr. Martin Luther King, “the arc of the moral universe” will bend toward racial justice despite the Court’s efforts today to impede its progress.”