First, although I'm assuming LITD readers are up to speed on the story that will be driving the news cycle this evening, here's the gist of what went down:
The Supreme Court on Thursday struck down affirmative action programs at the University of North Carolina and Harvard in a major victory for conservative activists, ending the systematic consideration of race in the admissions process.
The court ruled that both programs violate the Equal Protection Clause of the Constitution and are therefore unlawful. The vote was 6-3 in the UNC case and 6-2 in the Harvard case, in which liberal Justice Ketanji Brown Jackson was recused.
Now, the short version of my reaction to Jackson's dissent: disappointment. I'd extended grace when she was confirmed to the court. I'd genuinely hoped she would have more depth as a jurist than to be the you-bet-race-is-an-undeniable-factor-in-American-legal-considerations voice.
Alas, that seems to be exactly the role she's assumed:
“Given the lengthy history of state-sponsored, race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented ‘intergenerational transmission of inequality’ that still plagues our citizenry.”
And
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” she wrote. “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.”
Look, it's obvious that black Americans, taken collectively, bear sociocultural distinctions within the overall national fabric. I'd be the last person to deny that. The recognizable marks of black contribution to that fabric, in terms of music, food, colloquial customs and speech are as strong as those for the various ethnicities and nationalities that came here voluntarily. And that - the fact that most black Americans' ancestors did not come here voluntarily - means that those marks must be regarded in ways the others are not.
But the assumption behind the American experiment is that the sovereign individual is much more than the trappings of the circumstances that help define who she or he is.
Furthermore, the whole notion of law is based on fairness. A person ought to be able to assume that he or she will have his or her case heard by the entity in our society with a monopoly on the legitimate use of force - that is, government - in an impartial manner.
That means that the law must disregard questions of who had what kind of leg up at birth or during one's upbringing. The law must assume each one of us is a creature of agency, capable of exercising the faculties that differentiate human beings from lower animals when making choices.
This is what Jackson's colleague Clarence Thomas gets at in his opinion which concurs with the majority's:
In his concurring opinion, Thomas called out Jackson for her focus on "the historical subjugation of black Americans, invoking statistical racial gaps to argue in favor of defining and categorizing individuals by their race."
"As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today," Thomas wrote.
"I strongly disagree," Thomas said.
Jackson thinks, in a subsequent footnote, she's setting Thomas straight:
"The takeaway is that those who demand that no one think about race [a classic pink-elephant paradox] refuse 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's footnote reads.
In her own dissent of the UNC case, Jackson pointed to a number of statistics that show the wealth and health disparities between white and Black Americans, arguing, "Today's gaps exist because that freedom was denied far longer than it was ever afforded." Jackson warned that the majority opinion "will delay the day that every American has an equal opportunity to thrive, regardless of race."
See what she does there? She winds up using collectivist, demographics-based phenomena to try to justify the law performing tweaks on the bedrock notion of individuals standing before the law as such.
And then there's the feigned pity which is at the core of what affirmative action, certainly in 2023 America, is all about, as articulated by Glenn Loury:
Racial preferences persist because they represent the path of least resistance. If an administrator of a selective institution saw that blacks were a minuscule percent of his student body, he would want to change that. If he found that admitting African-American students at a lower percentile of performance would ease his public-relations problem, then he would do it. But when thousands of people in that same situation make the same decision and place it beyond criticism, the goal of equality suffers. Failing to address ourselves to the developmental disparities manifest in test scores, as well as failing to change the dynamics of human development at the root of black underrepresentation in elite and selective venues, means failing to solve the inequality problem.
Head counts are no substitute for performance, and everyone knows it. No policy can paper over the racial dimension of academic disparities. True equality would seek to remedy the foundational circumstances reflected in the underrepresentation of African-Americans at the Bronx High School of Science, Brooklyn Tech, Holy Cross, or Harvard. I’m for racial equality, not patronization. Don’t patronize my people, inflict on us the consequences of a soft bigotry of low expectations, or presume that we’re not capable of manifesting excellence in the same way as any other people. Don’t judge blacks by a different standard.
Two competing narratives exist to explain racial inequality: a bias narrative and a development narrative. The bias narrative holds that, even today, white supremacy and institutional racism keep black people from gaining entry into elite and selective venues and that the remedy for this is affirmative action. This was correct half a century ago. But does any serious person today really believe that Brown University, where I teach, is a racist institution? Does any serious person believe that the bias narrative accounts for what, in the absence of racial preferences, would be the relatively low number of African-Americans at Harvard, while Asian-American students there are excelling at some of the most difficult intellectual tasks that humans can be asked to perform? I don’t think so.
The development narrative holds instead that realities of racial inequality are a consequence of underdevelopment. That underdevelopment certainly has a genealogy rooted in bias. Historically, blacks were not afforded equal opportunity in the housing market, were not given a fair chance to accumulate wealth, and didn’t inherit from their ancestors that to which they were due, because their ancestors were enslaved and not compensated properly for their labor. Some of the social and cultural factors that might impair the development of black intellectual performance have their roots in this history. But the problem of inequality for African-Americans today is not mainly the expression of a racist society. And jiggering the test-score standards for people to get into elite institutions is not a remedy for it.
So, in the first highly charged SCOTUS case having to do with race since she came on board, Jackson has let me down. I wanted to think maybe she had the fealty-to-what-the-Consituition-says chops to not be some kind of Ibram X. Kendi-type race hustler.
I guess not.
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