Just a few random thoughts about the Harvard opinion. (On this blog I tend to avoid opining on current events, but I am endlessly fascinated by the law, by legal reasoning, and by the various strategies of legal interpretation. As Stanley Fish discovered a long time ago, there’s much overlap between literary and legal interpretation. I caught the bug from him.)
In Sotomayor’s dissent, she describes the majority opinion in this way:
Today, the Court concludes that indifference to race is the only constitutionally permissible means to achieve racial equality in college admissions. That interpretation of the Fourteenth Amendment is not only contrary to precedent and the entire teachings of our history, see supra, at 2–17, but is also grounded in the illusion that racial inequality was a problem of a different generation. Entrenched racial inequality remains a reality today. That is true for society writ large and, more specifically, for Harvard and the University of North Carolina (UNC), two institutions with a long history of racial exclusion. Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.
The problem is that this description is wrong. Indeed, later on she walks some of this back, admitting that “The majority does not dispute that some uses of race are constitutionally permissible. See ante, at 15. Indeed, it agrees that a limited use of race is permissible in some college admissions programs.” So the majority opinion does not demand “indifference to race” (even if Justice Thomas would probably like it to).
But unless I missed it — and I may have; her dissent is lengthy — she doesn’t walk back the baldly false claim that the majority holds to “the illusion that racial inequality was a problem of a different generation.”
Thomas in his concurrence: “I, of course, agree that our society is not, and has never been, colorblind.” Gorsuch in his concurrence: “In the aftermath of the Civil War, Congress took vital steps toward realizing the promise of equality under the law. As important as those initial efforts were, much work remained to be done — and much remains today.” Kavanaugh in his concurrence: “To be clear, although progress has been made since Bakke and Grutter, racial discrimination still occurs and the effects of past racial discrimination still persist.“ (Probably not great for collegiality when one justice forcefully accuses her colleagues of holding views that they have explicitly disavowed. It’s disappointing to see Sotomayor writing in such open disregard for the truth of her statements — but that’s the world we live in.)
Only Roberts, writing for the Court, doesn’t make any such statement, because in his legal reasoning it doesn’t matter. Racial inequality could be better than it used to be, about the same, or worse — it doesn’t matter. The only thing that matters is whether the policies employed by Harvard and UNC are legally justifiable. That’s his whole argument.
By contrast, what matters to Sotomayor is that the policies work:
The use of race in college admissions has had profound consequences by increasing the enrollment of underrepresented minorities on college campuses. This Court presupposes that segregation is a sin of the past and that raceconscious college admissions have played no role in the progress society has made. The fact that affirmative action in higher education “has worked and is continuing to work” is no reason to abandon the practice today.
Justice Jackson’s dissent operates under a similar logic: racism is an ongoing social problem, these policies are remedies for racism, therefore these policies are justifiable. But that’s a strange argument for a jurist to make. Many practices work — I could list a thousand tactics police departments have used to reduce crime — but that doesn’t make them legal. So these arguments by Sotomayor and Jackson seem to be outside the scope of their duties. But then, the same is true of Thomas’s dissent, which devotes a great deal of time to arguing that such policies do not work, do not accomplish their goals. That’s actually the chief burden of his concurrence, in which he directs much of his fire towards Jackson: You think policies like this help people like us, but they don’t.
The funny thing about all this is that Harvard and UNC in their briefs and oral arguments explicitly denied that their policies attempt to remediate the consequences of past and ongoing racism — they say that it’s all about creating “diversity.” They did so because SCOTUS precedent wouldn’t have worked in their favor if they had admitted that remediation of injustice is their goal. (Too long a story to get into here.) But the fact that, except for Roberts, the justices largely ignore the explicit justification and instead argue about the role that university admissions play or do not play in remedying injustice indicates that they know what the real reasons for these policies are.
Again and again Sotomayor and Jackson say Racism is bad, why is the majority denying that racism is bad? And again and again the majority say, Of course racism is bad, but our task is not to end racism, our task is to decide this case. (Kagan’s silence on this case is disappointing, since she joined Sotomayor and Jackson, and is an infinitely superior thinker and writer. My guess is that she has her own reasons, quite different from Sotomayor’s and Jackson’s, for dissenting; I’d like to know what they are.)
If even Supreme Court Justices don’t know what their job is, how can the rest of us be expected to? Representative Alexandria Ocasio-Cortez has been tweeting that if the court really believed in color-blindness it would have ended legacy admissions. But nobody brought a suit against legacy admissions. Does AOC really think that the Supreme Court can just decree at any time the end of any practice they think unjust? Actually, she might; it’s perfectly possible that she has no idea how the Supreme Court, or the legal system more generally, works. But I think it’s slightly more likely that she’s just performing rage for her social media audience. That’s perhaps to be expected. What’s less expected is for Supreme Court justices to be doing the same thing.
