The Let-Them-Eat-Cake Supreme Court Striking Down Affirmative Action
The dissenting opinion of Justice Jackson will probably be banned from being taught in school because it is “CRT”
In overturning affirmative action in higher education the Supreme (Trump) Court does make clear it plans to be consistent. It is going to be perfectly consistent.
What we learned from the Dobbs decision still holds true as evidenced by the most recent opinions of this radical conservative majority: 1) established precedent means nothing and can be discarded on a whim, 2) an “originalist” interpretation of the Constitution is a disingenuous matter of convenience, and 3) the conservative majority is purely a collection of political actors serving the interests and aims of radical right politicians to impose an agenda that could never successfully be imposed democratically (that agenda being opposed, depending on the issue, by anywhere from 60% to 80% of US citizens).
The Supreme (Trump) Court is consistent. They exercise their authority with hubris and self-congratulatory self-assurance with a dash of defensive lecturing. They are so convinced of their own great and profound wisdom, intelligence, integrity, and righteousness, they have given themselves permission to decree by judicial fiat that previous justices of the court, legislatures, and governing bodies of institutions of higher education have been stupidly wrong and mistaken.
They are here to correct all of that.
Aren’t we grateful? Don’t we recognize what a fine institution of great integrity our Supreme Court is?
Short answer: No.
Adding insult to injury:
Supreme Court Chief Justice John Roberts issued a warning … against dissenting opinions from liberal justices who demonize the high court when they disagree with its final decisions… “It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary,” Roberts wrote … “We do not mistake this plainly heartfelt disagreement for disparagement,” Roberts said … “It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country,” he added.
The Supreme (Trump) Court is currently held in low esteem by Americans. It is at an all-time low: 30% of registered voters approve of the court.
Hey, Chief Justice Roberts, that is not because of anything said by Justice Elena Kagan, Justice Sonia Sotomayor, and Justice Ketanji Brown Jackson. Methinks you are shooting the messenger when they all helpfully, though forcefully, try to explain to you and the other conservatives where you are wrong (which you are) on matters of law, precedent, standing, Constitutional originalism, as well as just plain historical facts.
The American public is not stupid, Chief Justice Roberts. A 30% approval means they can see for themselves what is happening, and they don’t need a degree from Harvard to see it. Need I even also mention the lack of signing on to any binding requirement to abide by ethical standards?
In short, Chief Justice Roberts, the American people see what Justice Jackson so perfectly summarized in her dissent:
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” Jackson wrote. “But deeming race irrelevant in law does not make it so in life.”
If there is any bright spot in this catastrophic mess that has now been unleashed upon us by this Supreme (Trump) Court it is this: We now see clearly that we have a young and brilliant Justice Ketanji Brown Jackson — a product of affirmative action — who is clearly going to be a powerful, incisive, and eloquent voice for the future.
Read her dissent. Now. Take a few minutes out of your busy day to read it. It will be time well spent. Why? Because she schools us all on the underpinnings of Critical Race Theory, even though she does not expressly use that terminology. I strongly suspect that her dissenting opinion will be banned in the classrooms of many red states. Numerous states have banned, or are considering bans, on teaching Critical Race Theory.
They know exactly what it is they are trying to ban, despite the smoke screen culture war nonsense and straw men they have propped up. The Republican elite, those billionaires who hang out with Thomas and Alito, know exactly what CRT really is and they do not want you to even be thinking about it, let alone have kids learn it.
Read her CRT dissent. Read, and learn.
Affirmative action is not an undeserved gift; it is an opportunity
Clarence Thomas got into Yale thanks to affirmative action. Ketanji Brown Jackson got into Harvard thanks to affirmative action. They both graduated because they were smart, capable, and perfectly deserving of being there. They did the work to earn their degrees; nobody did that for them. Somebody just went to the trouble to open the door for them and beckon them in. That is all that we are talking about when we speak of affirmative action. It is not a handout to undeserving people. It is not robbing someone else of what was supposedly rightfully theirs. It is just opening a narrow door a little wider than it would open on its own.
So, is there a problem here? Because I do not see it. I certainly see no harm that was done to any whites, or Asians for that matter, simply because Yale and Harvard reached out to these two Black people. It was to the advantage of all students to have had these two future Supreme Court Justices as classmates.
Clarence Thomas was nominated to the Supreme Court because he was Black. He was filling the seat left by the iconic Justice Thurgood Marshall, a Black man. President George H. W. Bush insisted Clarence was not nominated because he was Black. Uh-huh. You see, that is one clear difference between white Republicans and white Democrats when it comes to Black people in their midst: White Republicans use them as tokens to hide behind while pretending otherwise. White Democrats do not use Black people as tokens but are honest in their motivations and intent when nudging to the front of the line people of color and other historically underrepresented groups. Colorblind? Nobody is ever colorblind and this nation has never been colorblind. So, let’s be adults here and not naive children: Clarence was nominated as a Black man to fill the “Black seat” of Justice Marshall.
You could, in fact, call that affirmative action. Fine by me. What was revealed in his confirmation hearing about his lack of character, not fine by me, but that is another topic for another day.
Ketanji Brown Jackson was nominated to the court because she is a Black woman. The Biden administration was not coy about it like the Bush administration. Biden flatly stated at the outset he would be actively looking for a qualified Black woman.
So, that was also affirmative action. Fine by me.
Why Thomas for much of his adult life seemed to be a “self-hating Black” (not my words, just the terminology I heard a Black college professor on the news make use of) in the way he complained that his degree from Yale was worthless because of affirmative action, I do not know. Why in contrast Jackson has taken a completely different view and clearly has always been comfortable and confident in her own shoes, I also do not know. Why the contrast between them? I am in no position to delve into this. It is not my place. I am a white, blonde-haired, blue-eyed woman and therefore know nothing about the experience of Black people in America, let alone how they have experienced affirmative action. I will leave that discussion to others.
However, there are things I can observe. I can observe that Justice Thomas was fine with a white billionaire giving him gifts of travel and yacht rides. He was fine with a white billionaire paying for a home for his mom to live in rent-free. He was fine with a billionaire paying the tuition for his nephew to a boarding school.
Yet he is not fine with colleges reaching out to Black people to give them an opportunity, not a gift, just an opportunity, that they can then use to either succeed or fail according to their own ability and work ethic.
Odd, isn’t it?
But, let them eat cake, right? I bet there was some nice cake on Harlan Crow’s yacht.
Oh, but they keep affirmative action in one particular category, can you guess?
Buried in the enormously lengthy opinion written by Justice Roberts overturning affirmative action is one glaring carve-out exception: Military academies can continue their affirmative action programs.
Really? You are saying it is okay to expressly look for Blacks to be officers in our military, and potentially die on foreign soil, but it is not okay to expressly look for Blacks to come to Harvard and other elite schools which open the door to being … well, billionaires like the ones who can go on luxury fishing trips to Alaska?
Really? Seriously?
It is tucked away in a footnote, but it is there. Military academies are exempt from their ruling.
Again, Justice Jackson nails the insulting, ridiculous double standard. She does so politely, but nonetheless scathingly:
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)…(emphasis added)
As I was thinking about that, and thinking about our history, thinking about the history that preceded, inspired, and necessitated the 14th Amendment, I thought of Black soldiers fighting in the Civil War. I thought of Blacks fighting for the Union, while some racist northerners, though quite happy to have them on the battlefield, were certainly not interested in their equality once they came home after the war. If they came home and did not die in service of the country, that is.
I have no further comment on this shameful and tone-deaf aspect of the majority opinion. Jackson’s statement about “okay to promote Blacks in the bunker but not the boardroom” really calls it out for what it is.
Let them eat cake at West Point, I guess.
Expand the court
Yes, I saw President Biden’s interview with Nicolle Wallace. I wouldn’t have missed it as Nicolle is one of my favorites, an ex-Republican with exquisite snarky skill at calling out her former party’s hypocrisies.
She asked him whether he would consider expanding the court and he gave a flat no. He said, and I paraphrase, that doing so would politicize the Supreme Court beyond repair.
It already is politicized beyond repair!
You cannot further break something already completely broken. The Supreme (Trump) Court is completely broken. Just as Trump and his boot-licking sycophants have done drastic harm to the very fabric of our democracy, Trump’s appointments (illegitimately stolen appointments) have been the deciding factor giving extreme radicals like Alito and Thomas the votes they needed to run amok. They are now running amok, driving a veritable tank over the rights, liberties, and protections of our Constitution. They are not going to stop.
The number nine is not in the Constitution. Expand the court because the Constitution grants authority to do so! Use that authority!
I respect Biden, I truly do. I know he respects “institutions” and hence his desire to not take any drastic action regarding the Supreme (Trump) Court. I also respect, generally speaking, most Democrats in Congress. I know most of them agree with Biden that expanding the court would be “too political.” So, they just nibble around the edges, with proposals like term limits, which I see no use for unless they are retroactive and require the immediate retirement of Thomas and Alito. However, I imagine “respect” would not allow Congress to require those justices to retire immediately.
I have a question to ask: Should you show respect to those who do not show respect to you?
I respect those who show respect to me. I feel no obligation to show respect to those who spit in my face. With Dobbs, the court spit in my face. With 303 Creative, the court spit in my face. Striking down affirmative action, the court ignored history and conveniently ignored their own “originalism” to turn the 14th Amendment on its head and thus they spit on the Constitution itself.
Showing respect to this court is misplaced respect, as they respect none of us. They just respect billionaires, homophobic Christian web page designers, and, I guess, Blacks in bunkers doing the fighting for those white billionaires so their sons don’t have to … as their sons trot off to Harvard on their automatic legacy admission.
Expand the court.