The Supreme Court’s high bar on affirmative action
OPINION - The Supreme Court did not dismantle affirmative action in its long-awaited ruling on Monday. It didn’t really affirm the program, either...
According to conservative legal theory, however, virtually any government reference to race is now discriminatory and unacceptable. That’s why Justice Kennedy’s reference to “racial classifications” in this case could cast a long shadow.
Kennedy may be edging toward the strict linguistics of the conservative bar, which has latched onto the rhetoric of race-neutrality instead of its more complicated reality. It is a flirtation, not an embrace, as evidenced both by the opinion’s procedural emphasis (all that “scrutiny” talk), and the separate concurrences by Thomas and Scalia, (who went further than Kennedy would). This trend is vexing for defenders of civil rights laws, which are harder to enforce without, yes, racial classifications.
That debate crops up between the lines in Fisher. At one point, Kennedy offers a string of citations about skepticism of racial classifications. A close look at his chosen cases reveals the tension in the conservative argument.
He quotes similar-sounding precedents about equal treatment, such as the view that classifying people by their “ancestry” is “odious,” or that “racial classifications” are subject to the “most rigid scrutiny.”
OK: The first line is from a 2000 case rejecting Hawaii’s attempt to restrict voting by ethnicity. The second is from the landmark 1967 case invalidating Virginia’s anti-miscegenation law.
This is the ugliest side of racial classifications: When the government uses them to suppress voting, or practice marriage apartheid. Yet, to invoke those cases as a reason to criticize or invalidate the civil rights laws that supplanted overt racism– the laws to counter more subtle voter suppression, or to advance diversity–is chilling.
The court managed to skirt the heart of that dispute, for now, in Fisher. Instead, the tension over classifications and formal equality is beneath the surface of the opinion, sublimated by the pressures of seven justices coming to agreement and a holding focused on dry procedure.
Still, Justice Ginsburg, offering the only dissent, was not content to sign on with Kennedy’s logic or result. The Texas program is constitutional under current precedent, she wrote, and admissions policies drained of racial categories are not automatically better for societal progress. Indeed, without directly engaging the larger debate, Ginsburg rebuffed the idea that “race-blind” admissions programs, such as admitting the top students from every school in the state, were a better alternative. She noted that, if anything, those programs depend on–and were adopted to utilize–the racial segregation of the state’s communities and schools. “It is race consciousness, not blindness to race, that drives such plans,” Ginsburg stressed.
She was talking about Texas, and the case before the court. But she could have been talking about America, and the cases to come. After all, it’s hard to address racial inequities if you aren’t even allowed to talk about them.
Ari Melber is one of the hosts of MSNBC’s The Cycle.
