The Supreme Court’s left-wing minority, not its conservative majority, ignores the racial and ethnic reality of modern-day America.
In the Supreme Court’s landmark Harvard, UNC affirmative action case, left-wing Justices Sonia Sotomayor and Ketanji Brown Jackson argue that because the Court’s conservative majority insists on a colorblind or race neutral legal standard, it is out of touch with modern-day America.
In truth, Sotomayor and Jackson have it exactly backwards. They are the ones who are out of touch with an America that is increasingly multi-racial and multi-ethnic. And they fail to appreciate that it is precisely because of this fact that our law and jurisprudence must, of necessity, be colorblind or race neutral.
Race Matters. First, let’s give the devil her due. Sotomayor and Jackson ague that race matters in America because America has always been stained and marred by racism. Therefore, the law, too, must be cognizant of the importance of race and take race into account.
American society “is not, and has never been, colorblind,” declares Sotomayor.
[Today’s] Court cements a superficial rule of colorblindness as a Constitutional principle in an endemically segregated society where race has always mattered and continues to matter.
“Deeming race irrelevant in law does not make it so in life,” adds Jackson.
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.
Sotomayor and Jackson seriously distort and exaggerate the prevalence and significance of racism past and present. Isolated and suspect incidents of alleged racism, for instance, are taken to be emblematic of a “deep-seated legacy of racial subjugation [that] continues to manifest itself in student life” today.
Multi-Racial and Multi-Ethnic America. But the bigger problem is that their understanding of America too simplistic and dated. It is based on a 19th Century vision of a country that no longer exists, and which hasn’t existed for many decades. Their America is, both literally and figuratively, black and white, and not much else.
Sotomayor and Jackson ignore the fact that an increasing number of Americans are neither black nor white. Asian Americans, in fact, are the nation’s fastest-growing demographic group and, not coincidentally, the biggest victims of affirmative action in college admissions.
Not surprisingly, then, the lawsuit against Harvard was spearheaded by Asian Americans, who allege that this august Ivy League institution systematically discriminated against them. Sotomayor and Jackson try to deny this reality and pretend that it doesn’t exist, but the conservative majority found conclusive evidence to the contrary.
The “First Circuit Court,” writes Chief Justice John Roberts in his majority opinion, “found that Harvard’s consideration of race has led to an 11.1% decrease in the number of Asian Americans admitted to Harvard…
“Black applicants in the top four academic deciles,” he notes, “are between four and ten times more likely to be admitted to Harvard than Asian applicants in those deciles.”
Rigged Admissions. Sadly, this is no accident. The Supreme Court found that Harvard, UNC (and, surely, other elite colleges and universities) are deliberately rigging their admissions processes to discriminate against Asian Americans and to establish quotas for the number of Asian American students.
Yet in their dissenting opinions, Sotomayor and Jackson pretend that Asian Americans are not a significant demographic group and have no real cause for complaint. Jackson mentions Asian Americans a mere three times, once in a footnote, while never pausing to consider or grapple with their victimization through affirmative action.
Sotomayor, meanwhile, says that Asian Americans benefit from affirmative action because although they represent only about 6% of the U.S. population, they now make up more than 20% of Harvard’s admitted class.
This statistic, of course, sidesteps the issue of discrimination and ignores the fact that Asian American applicants to Harvard may be more numerous and better prepared, academically, than members of other demographic groups. So the 20% figure stripped of this necessary context is not very telling or revealing.
‘Diversity‘. Nor is the moniker “diversity,” which has become the justification or rationale used for racial preferences in college admissions.
Justice Neil Gorsuch observes that Harvard, UNC, and other elite colleges and universities exhibit little interest in non-racial markers of diversity. And they employ racial and ethnic classifications that “rest on incoherent stereotypes.”
The racial categories the universities employ in the name of diversity do not begin to reflect the differences that exist within each group.
Instead, they lump together white and Asian students from privileged backgrounds with “Jewish, Irish, Polish, or other ‘white’ ethnic groups whose ancestors faced discrimination” and “descendants of those Japanese-American citizens interned during World War II.”
Reality. Again, Sotomayor and Jackson ignore this demographic reality because, like Harvard, UNC, and other elite colleges and universities, they see an America that is only black and white. They don’t see the America that really exists in the 21st Century: multi-ethnic and multi-racial.
These two far-left justices also ignore the discrimination in college admissions that results from treating Asian Americans, and members of other racial and ethnic groups, as expendable.
“Plainly,” writes Gorsuch, “Harvard and UNC choose to treat some students worse than others in part because of race. To suggest otherwise—or to cling to the fact that the schools do not always say the quiet part aloud—is to deny reality.”
Equal Rights. Justice Clarence Thomas, meanwhile, does not deny the reality of racism in American life:
I, of course, agree that our society is not, and has never been, colorblind. People discriminate against one another for a whole host of reasons. But, under the Fourteenth Amendment, the law must disregard all racial distinctions…
Thomas expounds upon this point:
I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination… [However], two discriminatory wrongs cannot make a right…
This vision of meeting social racism with government-imposed racism is thus self-defeating, resulting in a never-ending cycle of victimization…
We must adhere to the promise of equality under the law declared by the Declaration of Independence and codified by the Fourteenth Amendment.
Racial Spoils. Given that America has moved far beyond black and white to include a multitude of races and ethnicities, it is hard to argue with this point. The alternative is a racial spoils system that awards rights, benefits, and privileges based on race and ethnicity, not merit and achievement.
Of course, affirmative action as it is described by Sotomayor and Jackson is benign. It aims not to hurt anyone, but to help African Americans who have been burdened by the legacy of slavery and Jim Crow.
The problem with their approach is that it ignores the zero-sum nature of college admissions and the existence of other disadvantaged groups, principally but not exclusively Asian Americans, who are denied benefits and opportunity from this reverse discrimination.
Modern-Day Realities. In other words, what might have been feasible (albeit still Constitutionally suspect) in 19th Century America is no longer feasible in the 21st Century, when a myriad of races and ethnicities dot the nation’s demographic landscape.
For this reason, the jurisprudence of Sotomayor and Jackson is woefully out of date and disconnected from modern-day demographic realities. A colorblind or race neutral legal standard is the only kind of legal standard that can work and secure popular legitimacy in our multi-ethnic and multi-racial country.
Feature photo credit: Supreme Court Justices Sonia Sotomayor (L) and Ketanji Brown Jackson (R), AP/Getty images, courtesy of NBC News.
