If racism in America is a thing of the past, then of course it makes sense that people should be allowed to remove, change and block any laws that attempt to remedy racism! Who needs Equal Protection under the law when in our enlightened age, racism doesn’t even exist any more? All those silly little laws are just taking up space and cluttering up legal dockets all across the country. Everyone knows that absolutely all of our citizens are completely impartial on the subject of race! There are no such things as hate crimes, discrimination in the workplace, or casual on-the-street prejudicial judgments made with reference to ethnic and racial identity! Barney’s theme song is still number one on the Billboard Top 40, where it’s been since 1992! We will all do the right thing for society and others when asked. Just ask Joseph Raymond McCarthy of Wisconsin!
I’m referring to the Supreme Court’s utterly useless decision (one among many this season) to uphold Michigan’s ban on affirmative action, in Schuette v. Coalition to Defend Affirmative Action. In her dissent, Justice Sotomayor (joined by Justice Ginsburg), points out that “to know the history of our Nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process.” She pointed out that the majority constantly changed the ground rules of the political process to first block entry to minorities, and then later to make it more difficult for the minority, “and the minority alone,” to obtain fair voting procedure (literacy and character requirements, poll taxes, special IDs) or integration (Jim Crow laws). Thus the need for affirmative action in higher education, a policy put in place and later protected by the Supreme Court when there were no other race-neutral means by which to capture an adequate level of diversity (note the parallel protection in public school education vis a vis racial integration, in 1954’s Brown v. Board of Education).
Rolling affirmative action back would mean placing special burdens on minority classes to achieve results that they were not able to obtain under the political process without Supreme Court protection; this is called “yanking the carpet out from under them.” Reliance on good behavior from the majority, without a legal statute to enforce it? That’s very noble of you, my good sirs. Moving forward, minority students will have no basis for calling for special attention, yet undue attention is given to those applying as athletes, children of alumni and so on; there is an implicit unfairness in such a dual-track system that may even extend to non-minority applicants. Today’s decision is akin to the Supreme Court’s 1883 decision to strike down the Civil Rights Act of 1875: the Bradley court decided that discrimination by individuals or private businesses were “ordinary civil injuries,” and that the Equal Protection of the 14th Amendment was only a bar on State actions, not private ones. It took 71 years for the Supreme Court to realize that was a crappy decision… and another 60 years to change their mind (again).
The last word, from Justice Sotomayor: “The political-process doctrine polices the channels of change to ensure that the majority, when it wins, does so without rigging the rules of the game to ensure its success. Today, the Court discards that doctrine without good reason.”