There was little suspense surrounding the outcome of the challenge to race-conscious admissions at Harvard College and the University of North Carolina, handed down by the Supreme Court on Thursday. A majority of the justices on this court have indicated in one way or another, over the course of several decades, that they are opposed to race-conscious admissions. And each of these justices have shown near-lockstep adherence to the right-wing project of upending the infrastructure of Civil Rights measures that have been working to confront and frustrate the legacy of this nation’s white supremacist history.
Nevertheless, Thursday’s decision by the Supreme Court striking down the use of race-conscious admissions at Harvard and UNC was no less devastating for being expected. The destructive force of the majority opinion is not only that it removes the ability of critical institutions of our democracy to directly recognize the significance of race as they build educational communities where students can learn from and about one another’s experiences and perspectives. The majority opinion’s shattering destruction, its cruelty even, lies in its cynical ahistoricism, the weakness of its analysis, its manipulation of precedent, all in service of the completion of a project undertaken by conservatives—and begun on this court decades ago—to dismantle the legal framework that supports even the most modest efforts to level the playing field for those who have been most marginalized in our country.
The court is on a mission, and the more transparently it betrays the aims of that mission, the more we must confront the danger in which this democracy finds itself. This court is also reckless in its zeal. This means that the methods it uses in furtherance of its mission are crude, shortsighted, thin, and thus easily exposed to charges of illegitimacy. The scope of the court’s hubris is breathtaking. It supplants its judgment over that of the most prestigious educational institutions in the country, as well as 74 major American companies that filed amicus briefs to the court, including Microsoft, Verizon, Starbucks, and American Express.
It is not just that the court runs roughshod over the judgment of these institutions that engage with young people every day and that control the pathways to access and opportunity for so many Americans. Or that the court diminishes the effort of universities to build a diverse learning environment as mere “commendable goals.” It is that this court reduces an assessment of that project to middle school math—demanding instruments of measure for the goals of affirmative action (even after previously discarding such measures), exalting a “two-step” approach, and lamenting the absence of an end date for affirmative action measures. As though fostering the robust exchange of ideas, supporting innovative problem-solving, and developing students equipped to lead in a multiracial democracy is legitimate only when subject to metes and bounds and a forecast due date, lest we, as a democracy, miss more pressing engagements.
In its haste to reach a conclusion that was inevitable from the day these cases were filed, the majority makes a mockery of stare decisis once again, turning its back on a succession of its own cases—the most recent in 2016—that have upheld affirmative action in university admissions. Time’s up, this court says, simply because there is new personnel, and so it can.
Likewise, the court brushes aside the extensive trial records accumulated in both the Harvard and UNC cases, and the more than 100 pages of findings of the trial courts in each case. The effect of this is to leave in place the misinformation that has dogged this case about whether Harvard’s or UNC’s admissions practices discriminate against Asian American students. The voluminous trial court record and decision each found that they do not. But the court can’t be bothered to fully engage the record and to clarify the falseness of the charge leveled against these institutions. And thus our discourse about race-conscious admissions will remain degraded, ahistorical, factually incorrect, and lacking in context.
But perhaps the most grotesque aspect of the majority’s opinion lies in its determination to drain the moral and legal force of the Supreme Court’s landmark decision in Brown v. Board of Education, which it uses as cover for its anti-equality project. The idea that it is Brown that blocks the path to the use of race as one factor in a holistic assessment of college applicants, rather than the relentless conservative attacks on the very access to opportunity that Brown championed, is a shameful exercise in gaslighting. The majority has found Brown useful as cover for its most extreme opinions. Last year, Justice Samuel Alito cited Brown as the justification for upending stare decisis in the Dobbs case overturning the constitutional right to an abortion. On its current course, the Supreme Court’s removal of context or history from its articulation of Brown’s meaning will leave Brown a case that changed the course of American democracy as a Civil Rights decision in name only, stripped of its powerful equality demand and rejection of white supremacy, its shell useful only to justify the extremes of the right-wing agenda.
Thursday’s decision leaves me with this stark realization. This Supreme Court’s decision-making bears a striking and dangerous likeness to that of the court’s post-Reconstruction 19th- and early 20th-century period. From its decision in Shelby v. Holder (denying the record of ongoing discrimination in voting that justified the reauthorization of the Voting Rights Act) to Comcast (weakening Section 1981 of the Civil Rights Act, which was designed to protect Black people against economic discrimination) to today’s ruling. Compare, for example, Justice Bradley’s lament in 1883 in the Civil Rights Cases (how long must the Negro be “the special favorite of the laws”?) to Chief Justice John Roberts today, appearing to have carefully counted out every minute since the court’s decision upholding affirmative action in Grutter (“twenty years later, no end is in sight”). Taken together in reasoning and consequence, this court’s 21st-century Civil Rights decisions are increasingly reminiscent of the 19th-century court’s steady weakening of the potential and promise of the 14th Amendment to the Constitution to provide the tools we needed then, and still need today, to create the multiracial democracy that the Framers of the Civil War amendments recognized would be this country’s last, best hope for survival.
