On Thursday, the Supreme Court voted 6-3 to gut affirmative action programs at universities. The disgraceful majority opinion, authored by Chief Justice John Roberts, said higher education can no longer use race as an explicit factor when admitting students, as it may “involve racial stereotyping.”
Ultraconservative Justice Clarence Thomas used his concurring opinion to lament that affirmative action encourages “permanent victimhood” and claimed that Justice Ketanji Brown Jackson had argued that the legacy of slavery “locks blacks into a seemingly perpetual inferior caste.” (Yes he really said “blacks,” not “Black people.”) Jackson responded in a footnote: “[Thomas] does not dispute any historical or present fact about the origins and continued existence of race-based disparity (nor could he), yet is somehow persuaded that these realities have no bearing on a fair assessment of ‘individual achievement.’” Jackson also wrote that Thomas “ignites too many more straw men to list, or fully extinguish, here.”
Jackson had some words for the majority opinion, too. She wrote: “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.”
In his opinion, Roberts tried to have it both ways by allowing colleges and universities to consider race only when it’s discussed in prospective students’ essays. “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today,” he wrote.
Weirdly, some of the arguments for race-conscious admissions penetrated Roberts’ little brain. He specifically exempts military academies and their “potentially distinct interests” from the ban that he’s unilaterally applying to the rest of America. “The United States as amicus curiae contends that race-based admissions programs further compelling interests at our Nation’s military academies. No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context,” Roberts wrote. “This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”
Justice Jackson saw right through Roberts’ carveout. “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 (a particularly awkward place to land, in light of the history the majority opts to ignore),” she wrote in her dissent against the UNC case. (She recused herself from the Harvard case because of her connection to the school.)
Conservative activist Edwin Blum spearheaded lawsuits against affirmative action policies at both Harvard University and the University of North Carolina (UNC) via his group Students for Fair Admissions. Lower courts held that the schools’ policies “used race in a sufficiently limited way to fulfill compelling interests in diversity,” per CNN. But plaintiffs argue that Harvard discriminates against Asian students, while UNC discriminates against Asian and white students. They’re saying affirmative action is a form of discrimination.
Blum has been at this for years: He also bankrolled both Abigail Fisher cases, decided in 2013 and 2016. Thursday’s victory was, obviously, a great joy to Blum. “Ending racial preferences in college admissions is an outcome that the vast majority of all races and ethnicities will celebrate,” Blum said in a statement to The New York Times. “A university doesn’t have real diversity when it simply assembles students who look different but come from similar backgrounds and act, talk and think alike.”
A bright spot of the horrific decision is Justice Sonia Sotomayor’s righteous dissent. In her dissent, the liberal justice rips into her colleagues, saying their “opinion is not grounded in law or fact” for an “endemically segregated society where race has always mattered and continues to matter.”
Sotomayor’s fire was joined by Jackson’s dissent, where Jackson specifically called out Justice Thomas, who used his concurring opinion to wax on about how white kids today shouldn’t be punished for Jim Crow Laws. (It should be noted here that while Thursday’s decision was immediately seen as a blow to non-white students in the admission process, white women are actually historically the biggest beneficiaries of affirmative action policies. And legacy admissions inherently favor white people.)
Some of Sotomayor’s strongest opinions are against racial profiling. She invokes her colleagues’ hypocrisy on the issue here. “The result of today’s decision is that a person’s skin color may play a role in assessing individualized suspicion, but it cannot play a role in assessing that person’s individualized contributions to a diverse learning environment,” she wrote. “That indefensible reading of the Constitution is not grounded in law and subverts the Fourteenth Amendment’s guarantee of equal protection.
Sotomayor, who is joined by Justices Elena Kagan and Jackson (again, only in the UNC case), wrote the court’s majority opinion is “indefensible” and will further entrench racism. “Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality,” Sotomayor wrote.
Legal mic drops from the liberal women on the court if we’ve ever seen them.