Justice Roberts declares racism dead (again).

June 30, 2023

[No audio version due to travel.]         

For the second time in his tenure as Chief Justice of the United States, John Roberts has struck a death blow to efforts to rectify the effects of two centuries of enslavement and a third century of state-sanctioned apartheid. From his comfortable roost of privilege and access, he views the daily struggle against racism and discrimination as mere abstractions and legal trifles (at best). At worst, he views those efforts as annoyances and obstacles that impair the ability of similarly situated members of the privileged class to secure their birthright to access, affluence, and power.

          John Roberts has ended affirmative action in the United States. As many commentators noted, he created an impossible “Catch 22” in which efforts to promote diversity are unconstitutional if they are either too specific or too vague. What’s left? As Roberts says, a university may consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

But that exception is so narrow that it is no exception at all. A university is always free to consider an applicant’s life experiences—including their challenges in overcoming racism. But Roberts snatches back the slight exception he acknowledged by writing in the next sentence, “Universities may not simply establish through application essays or other means the regime we hold unlawful today.”

          The arrogance of Roberts and his colleagues is maddening. They ignored briefing from US businesses, academic institutions, medical schools, and the military pleading with the Court to allow them to continue to recruit diverse leaders essential to their core mission. But Roberts concluded that he, and he alone, was better suited to determine what is best for American society. Except for the military academies, which Roberts exempted because they raise “distinct” issues—such as needing diversity in the officer corps to ensure cohesion and legitimacy in the military. That rationale, of course, applies equally to business, academia, and medicine. See Ian Millhiser, Vox, The monstrous arrogance of the Supreme Court’s affirmative action decision.

          The perniciousness of Roberts’s opinion is—as always—rooted in his willingness to ignore long-settled precedent to promote the right’s agenda of white religious nationalism. Justice Sotomayor laid bare the hubris of Roberts and his reactionary colleagues in overturning precedent:

“Lost arguments are not grounds to overrule a case. When proponents of those arguments, greater now in number on the Court, return to fight old battles anew, it betrays an unrestrained disregard for precedent.

“It fosters the People’s suspicions that ‘bedrock principles are founded . . . in the proclivities of individuals’ on this Court, not in the law, and it degrades ‘the integrity of our constitutional system of government.’ Nowhere is the damage greater than in cases like these that touch upon matters of representation and institutional legitimacy.

“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.”

          Justice Ketanji Brown Jackson called out the majority for pretending that being “color-blind” will somehow make the issue of racism in America disappear. 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. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems. No one benefits from ignorance. Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse.”

          As hundreds of commentators have noted, the universities that are now forbidden from using race as a “plus factor” in granting admission will continue to grant special consideration to legacy candidates—children of alumni—and to children of major donors, politicians, and celebrities.

          Justice Roberts was stung by the criticism in the dissent and fired back that they have “contorted [precedent] into a demand that such programs never stop.” The dissents say no such thing. Instead, they are saying that Roberts has once again proclaimed the premature demise of racism in American society (as he did in Shelby County v. Holder).

The 14th Amendment was crafted to prevent the pernicious after-effects of slavery. Today, Justice Roberts used the 14th Amendment to prohibit efforts to address the very evil targeted by the 14th Amendment. Such logic can only make sense in the comfortable confines of private clubs and secret societies that exist to insulate people like John Roberts from the descendants of enslaved people.

          The dirty work of the Supreme Court is now complete for this session but is far from over. The most reactionary members have their sights set on same-sex marriage, contraception, and separation of church and state.

          It should be obvious that Biden will be running not only against Trump but against the six members of the reactionary majority. Indeed, recognizing that fact and acting on it will make Biden a stronger candidate. See Dan Pfeiffer, The Message Box, It's Time to Make a Corrupt Court a Campaign Issue.

          Biden took a step in the right direction by stating that “This is not a normal Court” in response to a reporter’s question after the opinion was issued. NYTimes, Biden Slams Supreme Court Ruling on Affirmative Action. But in an interview with Nicole Wallace on MSNBC, Biden declared that he is against expanding the Court, saying

“I think if we start the process of trying to expand the court, we're going to politicize it maybe forever in a way that is not healthy.”

          Biden is wrong. The Court is already politicized and will not correct course for another generation, at least. It is corrupt and illegitimate. It has subverted the norms of jurisprudence to the dark money of Leonard Leo and the Federalist Society. Democrats are angry and Biden is failing to read the mood of his base.

          Would it be wrong for Biden to turn ethics reform and expansion of the Supreme Court into a campaign issue in 2024? Was it wrong for Trump to promise to appoint only judges who would vote to overturn Roe v. Wade? We must stop the madness of disallowing Democrats from engaging in the very tactics that Republicans use to win elections.

          The Supreme Court has been politicized. Get over it and start doing something to protect the rights of Americans that are being decimated by a reactionary majority. An enforceable ethics code is a small first step, but it is woefully inadequate to address the emergency that we now face.

Concluding Thoughts.

          Two days ago, I posed the following question after the ruling Moore v. Harper:

“Is this just a temporary pause in [Roberts’s] long game?” We may get our first clue about the answer to that question in the next few days. But even if those opinions surprise us like Allen v. Milligan (voting rights) and Moore v. Harper, the only reasonable assumption is that Roberts, Kavanaugh, and Barrett are temporizing, waiting for the next major item on the MAGA agenda to make its way to the Court. Too much is at stake for us to assume otherwise. We must keep up pressure on the Court!”

          The most effective way to keep up pressure on the reactionary majority is to put Roberts and his colleagues on the ballot. They must understand that when Biden is elected to a second term and Democrats recapture the House, their death grip on the Constitution will be over.

          I will send a short note tomorrow to open the Comments section for the weekend. Stay strong, everyone! We can fix the Court. We need only be as bold and dogged as Republicans have been over the last twenty-five years. We can do that—in two years!