gracchusdixit

The Supreme Court of the United States recently upheld an amendment to the Michigan state constitution, barring affirmative action in university admissions.  There was nothing surprising about this outcome.  It was merely the latest in a long series of decisions that all point in the same ideological direction.   In virtually every clash between the privileged and the powerless, the Roberts Court has taken the side of the privileged.

Justice Anthony Kennedy tried to justify this decision by denying that it had anything to do with affirmative action itself:  “The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences…”

With a good deal of high-sounding language about “rational, civic discourse” and the “capacity of voters to debate and then to determine,” Kennedy came down squarely in favor of states’ rights and majority rule—lovely ideas as long as you belong to the majority and don’t live in states that have a long history of disenfranchising minorities.

In a concurring opinion, Antonin Scalia was characteristically less delicate and more sarcastic:  “In my view, any law expressly requiring state actors to afford all persons equal protection of the laws does not—cannot—deny to any person equal protection of the laws, regardless of whatever evidence of seemingly foul purposes plaintiffs may cook up in the trial court.”

This is classic Scalia:  clever, slippery, and dismissive.  If you swallowed his bogus logic, you’d have to accept the proposition that any attempt to eradicate centuries of racial discrimination is itself a form of racial discrimination as wicked as the evil it is trying to redress.

Indeed, he came very close to saying precisely that: “As Justice Harlan observed a century ago, ‘our constitution is color-blind, and neither knows nor tolerates classes among citizens.’  The people of Michigan wish the same for their governing charter.  It would be shameful for us to stand in their way.”

The problem, of course, is that, while our Constitution may be color-blind—a dubious proposition at best, given the fact that many of the Founders were slave-owners—our society is not.  The real blindness is to pretend otherwise and, by using cynical Constitutional arguments, to treat remedies as maladies.

As I said, none of this should surprise us.  Before joining the Court, Chief Justice Roberts spent most of his legal career doing the bidding of big money, and his radically conservative colleagues—Scalia, Alito, Thomas—have never been coy about their intentions to roll back civil rights protections, eliminate affirmative action, and advance private interests at the expense of the public good.

In the end, the only surprising and hopeful thing about this case was the remarkably direct dissenting opinion of Justice Sonia Sotamayor.  In 58 relentless pages, she laid out our country’s long, lamentable history of institutionalized racial discrimination, demonstrating how persistently “states rights” and  “majority rule” have served to perpetuate prejudice.  Along the way, she took direct aim at the hypocritical piety of the conservatives on the Court and in particular at the Chief Justice himself:

“My colleagues are of the view that we should leave race out of the picture entirely and let the voters sort it out.  We have seen this reasoning before:  ‘the way to stop racial discrimination on the basis of race is to stop discriminating on the basis of race’.  It is a sentiment out of touch with reality, one not required by the Constitution, and one that has properly been rejected as ‘not sufficient’ in cases of this nature.”

The “sentiment” she attacked had been expressed by none other than John Roberts, the Chief Justice of the United States.  Needless to say, this did not sit well with the Chief Justice, and he weighed in with a pompous rebuke:  “People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

Roberts can pontificate all he wants, but Sonia Sotamayor finally did what has long needed doing.  She called out the conservative cabal on the Court for being the “bad faith” connivers they truly are.

She was right.  They are out of touch with reality.  Unfortunately, they are also in charge of the highest court in the land.