The Supreme Court eradicated race-based affirmative action programs in college admissions Thursday when it ruled 6-3 that programs at Harvard University and the University of North Carolina violate the Equal Protection Clause of the Fourteenth Amendment of the Constitution.
Justice Ketanji Brown Jackson slammed the Court’s decision as being “without any basis in law, history, logic, or justice,” and grounded instead in “let-them-eat-cake obliviousness.”
Likewise, Justice Sonia Sotomayor called the decision “not grounded in law or fact” and in conflict with “the vision of equality embodied in the Fourteenth Amendment.” She reduced the majority’s decision to an unwise move undertaken by unelected judges acting with willful blindness:
At bottom, the six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law.
Chief Justice John Roberts penned the majority opinion.
“University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and — at some point — they must end,” he wrote. “Eliminating racial discrimination means eliminating all of it.”
Justice Clarence Thomas, who said during oral arguments that he had “no clue” what diversity because, in his words, “it seems to mean everything for everyone,” penned a lengthy concurrence that encapsulated the principle that race-based affirmative action is wrong because it is itself a form of racism that demands unequal treatment for those of different races.
Speaking directly to the three dissenting justices, Thomas acknowledged their sincere beliefs, but said “experts and elites have been wrong before — and they may prove to be wrong again.”
“The stakes are simply too high to gamble,” said Thomas. “Then, as now, the views that motivated Dred Scott and Plessy have not been confined to the past, and we must remain ever vigilant against all forms of racial discrimination.”
Jackson, the Supreme Court’s first Black woman justice, minced no words as she began with a check-in on the current state of systemic racism in the U.S.:
Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the “self-evident” truth that all of us are created equal.
In stark contrast to the chief justice’s proclamation that “Eliminating racial discrimination means eliminating all of it,” Jackson bluntly wrote: “Our country has never been colorblind.”
Jackson recounted historical moments including Dred Scott v. Sanford, Plessy v. Ferguson, Black Codes, Jim Crow, and the Great Migration, and said the resulting “race-linked gaps should be no mystery.”
She said that Black families still face race-based disparities in income and health that are “the predictable result of opportunity disparities,” and not “a deficiency of Black Americans’ desire or ability to, in Frederick Douglass’s words, ‘stand on [their] own legs.””
Jackson had little time for the majority’s purported efforts to remedy race-based disadvantage with race blindness.
“[T]he irony is that requiring colleges to ignore the initial race-linked opportunity gap between applicants [of differing racial backgrounds] will inevitably widen that gap, not narrow it,” predicted the justice. “It will delay the day that every American has an equal opportunity to thrive, regardless of race.”
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” summed up the justice. “The best that can be said of the majority’s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism,” wrote a frustrated Jackson.
But it was the Court’s only other Black justice for whom Jackson appeared completely out of patience. In a footnote that called specific attention to Thomas’ motives, logic, and conclusion, Jackson tore down her fellow justice’s concurrence as a response “to a dissent [she] did not write in order to assail an admissions program that is not the one UNC has crafted.”
Jackson wrote that the Thomas concurrence “demonstrates an obsession with race consciousness that far outstrips my or UNC’s holistic understanding that race can be a factor that affects applicants’ unique life experiences.”
She went on to call out Thomas for “ignit[ing] too many more straw men to list,” and called his logic “a classic pink-elephant paradox.”
“[R]efuse to see, much less solve for, the elephant in the room — the race-linked disparities that continue to impede achievement of our great Nation’s full potential,” Jackson warned. Ignoring “obvious truths” is precisely what will stop society from its “progression toward becoming a society where race no longer matters,” wrote Jackson.
Jackson also wrote that a diverse student body “helps everyone, not just those who, due to their race, have directly inherited distinct disadvantages with respect to their health, wealth, and well-being.” Rather, a racially-diverse educational environment will result in more robust education and a measurably healthier economy to the tune of billions of dollars.
Justice Sonia Sotomayor, the Court’s first Latina justice, seemed similarly incensed by Thomas’ opinion. In a separate dissent, Sotomayor called out Thomas for his suggestion — untethered to evidence in the case — that those who support affirmative action share the same views that motivated long-overruled decisions grounded in white supremacy.
Sotomayor wrote that Thomas “belies reality by suggesting that ‘experts and elites’ with views similar to those ‘that motivated Dred Scott and Plessy’ are the ones who support race conscious admissions.”
“The plethora of young students of color who testified in favor of race-consciousness proves otherwise,” Sotomayor continued. “Not a single student — let alone any racial minority — affected by the Court’s decision testified in favor of [the plaintiffs] in these cases.” The justice went on to predict that the Court’s decision will have wide-ranging, costly consequences, affecting everything from national security to American business to the future of government itself.
Sotomayor ended her dissent on a hopeful note, writing that, despite the Court’s ruling, society has come to value diversity as “a fundamental American value” and that “progress toward equality cannot be permanently halted.”
“The pursuit of racial diversity will go on,” she wrote, urging colleges to use various tools to create racially-diverse student bodies.
She also included statement of optimism and a quote from Rev. Dr. Martin Luther King’s “Our God is Marching On!” speech from March 25, 1965.
“As has been the case before in the history of American democracy, ‘the arc of the moral universe’ will bend toward racial justice despite the Court’s efforts today to impede its progress,” she wrote.
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Sotomayor, Jackson slam Thomas in SCOTUS affirmative action case
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